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Full text of "Trial of William W. Holden : governor of North Carolina, before the Senate of North Carolina, on impeachment by the House of Representatives for high crimes and misdeameanors"

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Senate Chamber, March 15, 18 

The COURT met at eleven o'clock a. m., pursuant to ad- 
journment, Hon. R. M. Pearson, Chief Justice of the Supreme 
Court, in the chair. 

Proceedings were opened by proclamation made in due form 
by the doorkeeper. 

The CLERK proceeded to call the roll of senators, when the 
following senators were found to be present : 

Messrs. Adams, Albright, Allen, Battle, Bellamy, Brogden, 
Brown, Cook, Council, Cowles, Crowell, Currie, Dargan, Ed- 
wards, Eppes, Hemming, Gilmer, Graham of Alamance, Gra- 
ham of Orange, Hawkins, Hyman, Jones, King, Latham, Led 
better, Lehman, Linney, Love, Manner, McClammy, Merrimon. 
Moore, Morehead, Murphy, Nbrment, Olds, Price, Bobbins of 
Davidson, Bobbins of Rowan, Skinner, Speed, Troy, Waddell, 
"Warren, Whiteside and Worth — -16. 

Senator MOORE moved that the reading of the journal be 
dispensed with. 

The CHIEF JUSTICE put the question on the motion of 
Senator Moore, and it was decided in the affirmative. 

Mr. GRAHAM of counsel for the managers then address* 
the court. 

He said : — 

Mr. Chief Justice and Senatoiks: I -congratulate vou thai 
this tedious investigation is approaching its close. The sbujeol 
of impeachment is an important one, and for the first time 
engages the attention of the legislature of North Carolina. F< >v 
nearly the century that the constitution of the republic has been 
in operation, there has been no instance, so far as my informa- 
tion extends, where the representatives of the people have here- 
tofore found it necessary to arraign before the court of impeach- 
ment the highest officer of the state or any officer whate\< I 



h has been tlie usual satisfaction of tlie people with : 
eonduct of their public functionaries, or their forbearance and 
patience, thatuntil now they have never thought proper to con- 
stitute their senate into a court of j out and to require at 
I dsan investigation into the conduct of apubiic officer. In 
this ini he • against the chief magistrate, 
the person occupying the highest official position and consti- 
tuting, for the time being, the representative of one depart- 
ot of the government. Tin - fcter to be considered there- 
be expected to be of . t moment. 
I pri [ to its coi Ltion, j- -•■ it may be 
essary to mention some things that have been inci- 
■'. .tally brought to attention and which u ay deserve a 
: sing n< i . It ha ' that it was extraor- 
dii that counsel should app . • in such a case. I think 
if p are examined in other states, it will be found 
: ; not unusual. I think t.ha ion it will 
ise be concede 1 that fh honorable m il rs in the 
Lives having their uei ary duties there 
to perform, and then tsua-1 c t to keep up with 
! tituente could not, in the length of time usually de- 
voted to the session of the legislature of X arblina, have 

lied those duties, and com prose ion without 

'.. I mce. The matters themselves have been such as to i 

tin aim >st undivided attention < or a period j 

ght days, and I do not see how it would have bem 

poi le for any gentleman of the board of managers on the 

part of tjie" house of representatives to have been faithful and ' 

diligent in his legislative office, and a1 tli same time borne an 

active part in the- conduct of this impeachment. In congress,. 

with its long sessions and its larger number of members it has 

10I been usual, but it certainly has always been allowable to< 

bring in counsel on behalf of the people. But in our mode of 

proceeding and in the short sessions usually held here, it is not 

only convenient but it is jn the highest degree proper. As I have 

remarked this is the first occasion, and the subjects are novel,, 


the matters to be investigated are somewhat voluminous and it 
required more time tliau could conveniently be devoted to it by 
the members of the house in person. Besides, it would be 
no small drawback on the proceedings of the house if seven of 
its most active and most useful members were withdrawn fri 
their ordinary duties there in order to be obliged to carry on 
the prosecution here. 

I deem it proper also to speak in regard to another observa- 
tion that has been thrown out in some way in the course of this 
proceeding, namely that the action of this high court in North 
Carolina may in some mode or other provoke dissatisfaction 
elsewhere : and that there may be in consequence new in- 
ures of reconstruction, or new movements on the part of con- 
gress to the detriment of the state provided the judgment of 
this court shall be as I think it ought to be. In regard to tl 
I must say that I do not believe the congress of the I [ted 
States will depart from that constitution under which we i 
now living in harmony: and that when the state of North 
Carolina renewed her constitutional relations to the fed: 
government, she come back with all the rights and privileges 
of a sovereign state : and that her state senators and represen- 
tatives when charged with duties by the people, are to perform 
their functions under the same responbilities and with tin 
privilege and immunities that belong to the senators and repre- 
sentatives of any state of the union. 

I notice this, because by some, it may be supposed that pro- 
vacation may be given by this proceeding which would subject 
us to less favorable treatment as a member of the union than 
we should otherwise receive. For my own part, I have to say 
to every public man in regard to his public life, what the greal 
poet represents the angel as having said to our first ancestor, 
in regard to his natural life, 

" Nor love thy life, nor hate, 
But what thou livcst live well — 
How long or short to Heaven permit. 


Oar duties are to be done : to be done candidly, prudently, and 
at the same time fearlessly. 

Mr. Chief Justice and Senators, the representatives of the 
people, from a deep sense of the high duties which they owed 
to their constituents, .and in answer to complaints made by a 
respectable portion of the people, have arraigned the governor 
of North Carolina upon certain specific charges which you are 
required to try. It is for you, upon the evidence which you 
have heard ; upon the facts and attending circumstances of the oc- 
currences detailed, and the constitution and the law applicable 
thereto, to say whether he is guilty or not guilty upon the charges 
preferred. They are charges of the perversion and abuse of high 
official powers. The first of these charges is that he unlawfully 
and from improper motives, and falsely, declared certain 
counties of the state to be in insurrection, when no insurrec- 
tion existed in fact, and having thus, as he supposed, put 
them in a state of insurrection, he caused their leading and 
best citizens to be arrested, imprisoned, tortured, deprived of 
their liberties for thirty days or more ; and that all this he did 
under the color of his office. They charge that that official 
power, which had been placed in his hands for the purpose of 
giving security to society and promoting the public good, 
was applied to the most outrageous, opprobrious injury and 
wrong ; and they state the fact to be tliat the respondent 
having, as he alleged, found that in the county of Ala- 
mance, with a population of more than eleven thousand 
souls, certain crimes had been committed, instead of re- 
sorting to the law as established by our ancestors and as 
it has been known to us in the generation in which we 
have lived, for the punishment of these crimes and for the 
prevention of like offences in the future, chose to disre- 
gard the law of the land and the constitution of the state, to 
raise an armed force, unlawfully and without authority, and to 
march them into those counties, and without making a bow or 
asking a question, without conferring with anyjudicial magis- 
trate, high or low, he proceeded., by means of this armed force to 


seize and arrest men indiscriminately without regard to whether 
they had been individually guilty, or were even suspected of 
crime. The object seemed to be to strike terror into the country 
by seizing men of known respectability and character and hold- 
ing them up to the world as examples of the criminals who 
had committed assassinations and other crimes of like nature. 
The second charge alleges that he was guilty of a similar 
course towards the county of Caswell, with a population of more 
than sixteen thousand ; that having declared it in a state of in- 
surrection and proceding under cover ot the insurrection which 
he himself created — for it had no existence except upon paper 
in his proclamation — that he sent there an armed force on the 
day when the people had assembled together to hear those who 
aspired to represent them in congress discuss the state of the 
country, an occasion when of all others the people had a right 
to be free and to have all the information which these gentle- 
men were capable of imparting to them in order to judge of 
their qualifications to represent them in the councils of the 
nation : that this armed force entered that peaceful ami 
orderly assembly and there without authority, or civil officer 
of the law, without pretence that anybody had made any affi- 
davit, without warrant upon which a man could be deprived of 
his liberty, first seized Doctor Roane, one of the most respect- 
able gentlemen in that ; or any other county in the state and 
then successively the Hon. John Kerr, the Hon. S. P. Hill, 
William B. Bowe, Esq., the sheriff* the coroner and others of 
the prominent citizens of the county, many of them the pillars 
of society, both in church and state and men above reproach in 
every respect. They were assaulted and seized in the most 
rude and violent and insulting manner. They were nut ac- 
costed in language that might be expected from those who 
were acting in obedience to law — such as that: "I am sent 
" here to arrest you ; I beg you to understand I intend you no 
" harm. 1 ' But when it was asked, "By what authority &" — 
words that would instinctivelv issue from the mouth of an 
American, citizen anywhere, upon being told, tliat he was at 


prisoner, the answer was, " Here is my authority," — referring 
to the men with bayonets in hand, with oaths and imprecations 
disgraceful to civilization. These citizens are taken and im- 
prisoned. They are charged afterwards by the respondent 
with being assassins and murderers, or with participating in or 
being accessory to those crimes. 

The respondent in his answer admits, " That the snid named 
"parties were arrested and detained and held for examination 
" in the said county of Caswell, by officers commanding the 
" organized body of militia therein, and that this respondent 
" was informed and believes and so charges that the aforesaid 
"persoi . : each of them were arrested on probable cause, 
" and were either suspected persons, or persons accused ot being 
" accessories or principals in offences against the laws." 

And the admission is made in regard to the citizens of 


"This respondent admits, "That under the aforesaid order, 
"the persons named in said first article, were arrested and 
"detained and held for examination by the officers com- 
" manding the said organized body of militia in t}io county of 
"Alamance ami that this respondent, as governor ot ISTorth 
" Carolina, did approve of their said arrest and detention, but 
" this respondent was informed and b ' and so charges that 
" the said persons and each of them were suspected persons, and 
-arrested on probable cause, for crimes alleg) d to have been 
mmitted by them and each of them." 

Therefore, as to the crime charged in the first arl icle, < >f falsely 
declaring the county in insurrection and the arrest of these 
persons without any cause whatever and their imprisonment and 
maltreatment ; their arrest is admitted in the answer, and the in- 
jury done Vy the arrest, is aggravated by the accusation that each 

these persons was arrested as One suspected of crime and held 
to answer for it. I beg to know where is the evidence against 
any one ot* them to prove him guilty of the crime clanged. 
"Why, sir, as to the Binghams, the Mebanes, the Scotts and 
others in Alamance, the Roanes, the Kerrs, the I'owcs, the 


Hills in Caswell — who has sworn to a word of accusation 
against any one of them? It is alleged in the answer that 
crimes had been committed in the county. Certainly there had : 
but is the fact that a man lives in the county where crime 
been committed sufficient to authorize his arrest by t; 
ernor or by anybody else 'i It is alleged in the answer '.- 

to be inferred from it that nobody was ai except a 

pected man against whom probable cause Lad been shown. 
Those arrested in the process of time were In before 

chief justice of North Carolina or before the district judge oi 
the United States for the district, of North Carolina on \ 

1 wen charged — eve; of tin 

Where stood the governor the: . Where was thi 

w that they were lawfully captured 
The whole proceedings show that ther. 

any of Id in j : 

more from Caswell. The respondent was at perfi 

>re these legal tribu show, t! one of tl 

was not entitled to be < : as they all v 

imputation whatev .-r. yet he offered no 

The third article char . it of Josiah Turn 

a citizen of the state the county of Orange, wh 

not pretended 
fore was in like condition with the count 
county. Yet he was assaulte the 's troop 

cocked mn ized in the town of Hillsboro, his house 

was invaded while he was held as a prisoner, his bed 
entered and the arms which he had in the house take and 

never have yet been restored. lie himself was hurried off to 
Yanceyville, was detained there many days and af i • car- 

ried to Alamance and for the purpose of gratifying private 
malice, of wreaking lal vengeance, committed to jail v 

other of those persons in a loathsome cell amid vermin i 
among condemned criminals, one of whom was about 
the penalty of death. The answer denies that the respondent 
ordered the arrest, but admits that he approved it. Bat the 


proof is tliat lie not only ordered it, and ordered it to gratify a 1 
private grudge on the ver}' day when the election was pending,. 
saying that Turner is responsible for a good many of these 
troubles, " and he has published me to-day as a coward/' or 
something of that sort. That is a new law of libel in this 
aountry by which a newspaper editor is liable to be thus sum- 
marily and severely dealt with, for a criticism or denunciation, 
upon a man in authority — by which a governor of a state can 

ler the person who thus assails him to be taken and com- 
mitted to jail, imprisoned and maltreated and degraded, as was 
tche lot of Mr. Turner at the hands of the respondent in this in- 

There is a law of libel as well as other laws. It is to be 
enforced through courts of justice as others are ; but that a 
man can be taken and incarcerated instanter without trial, 
because he has said hard things of a public officer is a new 
doctrine of scaudaliunmagnatmn never known in this country 
or even in that from which, we derive our institutions. 

The fourth article alleges that the respondent did procure 
and command G. ~W. Kirk and Burgen, his so-called military 
officers, and other evil-disposed persons to seize and imprison 
divers good citizens who are named, and are residents in the 
county of Caswell. And the proofs are in substance the 
same as those applicable to article second. 

The fifth and sixth articles charge that whereas, a citizen 
»f Alamance and sundry citizens of Caswell had been arrested 
without lawful authority and by this armed force thus unlaw- 
fully raised, the person thus arrested made application to the 
chief justice of the state for the writ of habeas corpus — that 
great writ of right which Doctor Johnson, a century ago, 
said was " the single advantage which the government of 
a England had over that of all other countries," and which 
Lord Macauley, in our time pronounces to be the most strin- 
gent curb that legislation ever imposed on tyranny. It is 
the right which every man has, who is imprisoned, whether 
at the instance of a private individual or of a public functionary,, 


to be brought before a judicial tribunal immediately, to the 
end that the cause of his commitment may be inquired into 
and that he may be enlarged without or with bail, except in 
cases of capital crime where the proof is positive or the pre- 
sumption of guilt violent. This great remedy is dear to the 
American people. It is the tenure by which they hold their 

When that writ went out it was the state of North Carolina 
speaking over the signature oi her highest judicial officer, com- 
manding George "W. Kirk to bring before him the bodies of 
Adolphus G. Moore and John Kerr, and others whom he was 
alleged to have in custody, in order that the cause of their 
capture and detention might be inquired into. It was sent to- 
Kirk. What answer does he make ? lie contemns it and 
defies it. " Such papers are played out — I am acting under 
" the direction of Governor Holden. I am holding these men 
" under his order. I don't intend to surrender them to the 
" order of the chief justice. I intend to obey only a military 
" superior. I am a military man, and I do not intend that the 
" civil officers of this state shall inquire into this matter at all. 
" On the contrary a court has been appointed by the governor 
"for their trial." He not only refuses to surrender these per- 
sons to have their cases examined by a lawful court, but he 
announces there is another court, which it appears clearly from 
the evidence, was to be a military commission, and 
that those persons were to go before that court to 
be tried. And yet these things occurred in the state- 
ot ISTorth Carolina — a state with a constitution a century old. 
which had guaranteed the'privilege of the writ of hab< as a i 
in all that time ; and which those who framedit had had guar- 
anteed to them for centuries preceding. A military officer pro- 
claims that he will not surrender these citizens, nor bring them 
before the court to have their case inquired into. He is not con- 
tent with that justice which the constitution and the laws have 
provided but he and the governor have got a justice of their 
awn, " sharp, quick, and decisive," I think are the words — 

2:280 court of impfaciimexts. 

something out of tbe usual channel. Thev intend that tliese 
men (among them, those of the highest esteem and reputation in 
their respective counties) against whom no crime had been im- 
puted, in any legitimate manner, shall not be tried by the or- 
dinary courts of law, that thev shall not have a judge and jury 
to pass upon their case, but that they shall be tried by a mili- 
tary commission, which, as it turns out in the further develop- 
ment, is to be composed ol newly fledged generals, and colonels 
and captains, without commands, or boundaries of authority, 
appointed by the Governor in order that they might be detailed 
to seats in that court : Major Gen'l "W. D. Jones, Brig. Gen'l 
C. S. Moring ig. Gen'l W. II. Albright, Col. II. M. Ear, 
: . G. Yi 1 . Hardin, Capt. Robert Hancock, and other high 
ries of this class who w< re supposed to be superior to 
es and juries in that jurisprudence which 
;k was to administer as military justice under the orderi I 
chief. What followed next \ By a grave judicial error 
the : I lit upon the s1 y eorres 

where he had no right to appear (the main design of hab 

to protect men from oppression by exe uti i 
avows that : directed that these men shall be 

the process of the court, that he I 
id Kirk to I and detain them ; , that they shall 

not be surrend li itil he think ir to restore 2ivil author- 

ity in the counties i ell. 

lie avowal made by the chief magistrate of North 
rolina in repl nd in the name of the state by its 

higl Eficerto Kirk ; (which is equally a command to all who 

I control over him) to bring th •■ men before the chief jus- 
tice in order that th< i ight have their cae enquired into ; — 
not that they should be turned loose necessarily, but that it 
might be shown whether they were guilty or reasonably sus- 
pected or innocent; and if they were just grounds of suspicion 
that they might be permitted to give bail. But no. Kirk says 
they shall not come, and the respondent avows that he will not 
permit them to be brought until such time, as he thinks proper 


to restore the civil authority in the counties in question. And 
he does not say that then they shall come before the chief jus- 
tice. For although it may he inferred that he desired it to he 
understood by the chief justice that they should in time come 
before him, he is at the same time carrying on a correspondence 
" aside " with Kirk, in which he tells him that a military court 
is to sit for their trial on the 25th of July (it is now the 16th 
or 17th) and subsequently, he writes that although it was post- 
poned from that time, it would certainly be convened on the 
8th of August. This double dealing was carried on that while 
the judicial officer is entertained with the idea that these -pris- 
oners may eventually be brought before him, Kirk is adv 
of the names of six or seven learned members of the court and 
that his command will furnish six or seven more : that the 
court would certainly assemble and try the prisoners. And it 
is implied of course, that sue] •:' them as this court found 

Itywere to suffer death by hanging or shooting or such pc 
ties as this vise military commission should impose. And i 
perhaps it was intend ed to re-open the correspondence with the 
chief justice, by advising that the writs of habeas & had 

abated by the death of the applicant 

I say, Mr. Chief Justice and Senators, that there never has 
been such an outrage on the constitution and lavs of any 
country. I say that a military officer, a major-general for 
instance in the army of the United States who should have 
acted as did the governor of this state in refusing to obey the 
habeas carpus and going on to provide a military commi on 
for the trial of citizens that he held in defiance of the writ, 
if tried by a court martial, would have been sentenced to be 
shot. At least he would have been deprived of his com- 
mission and probably even, of his life. Such an outrage on 
the constitution, and upon our instinctive ideas of personal 
liberty, would not have been tolerated by even military jus- 
tice in any court either in America or in England, a moment 
longer than should be necessary to enable a court to ascertain 
the truth and pronounce judgment. To make arbitrary 


arrests of the best citizens, without any legal accusation was 
bad enough : to disobey and contemn the writ of habeas corpus 
issued to inquire into the cause of their detention— to carry 
into effect " the most stringent curb that legislation ever im- 
posed on tyranny" — was an enormous aggravation ; but to' 
attempt to supersede the whole code of criminal justice, with 
all it s safe-guards to accused pesons, by the agency of learned- 
judges and jury trials, and subject civilians to condemnation 
by a military commission, a court as Mr. Webster charac- 
terized it " appointed to convict," selected by the governor,. 
was an infatuation in guilt, without a precedent or parallel. 
Although there has been a studied attempt to conceal and 
suppress the evidence of this iniquitous design, it plainly 
appears in this cause, that the machinery Avas all prepared 
and the plot matured for this inquisition of blood. Having 
para 1 ized the judicial power of the state by intimidation the 
respondent was in full tide towards the successful accomplish- 
ment of this design when he was interrupted by the beneficent 
and resolute interposition of his honor Judge Brooks, the 
district judge of the United States. 

Mr. Chief Justice and Senators, the next allegation is that the 
respondent arrested John Kerr and a large number of other- 
persons, charging a good deal of the same matter as in the first 
article without the allegation of having proclaimed insurrection. 
and that he refused to bring them, before the Chief Justice in 
the same manner that he refused in the case of the Alamance 

The 7th article charges that he raised an unlawful force, and 
drew large sums of money from the treasury for the purpose of 
sustaining that force contrary to law. 

The 8th article charges that when a citizen of the state, a 
tax-payer in the name of himself and other tax-payers of North 
Carolina, applied to a court of justice alleging that these 
monies were about to be improperly disbursed in paying off 
this unauthorized force, and an injunction had been granted by 
a judge restraining the person in whose custody the money had 


Tjeen placed, so that the matter could be kept In suspense till 
there should be a judicial investigation, the Governor thought 
proper to cut that gordian knot also with the sword. He has 
no use for the refinements of judicial decision — no care as to 
what equity in its injunctions may decree, but in a summary 
way lie chooses to take the defendant out of court, or to take 
the money out of the hands of this defendant, and put it in 
other hands before a new restraint can be imposed against its 
disbursement — another contempt of a court of justice, not 
however so great or so enormous as the refusal to permit Kirk 
to obey the writ of habeas corpus. 

These, Mr. Chief Justice and Senators, are the eharges which 
.are made against the respondent, and I submit that he is guilty 
upon them all. 

I have already said the respondent admits by his answer that 
he did arrest all the eitizens named in these articles ; that he 
did commit the acts charged as the gravamen of the offence, 
and he says, that he did it by reason of their being persons 
suspected of crimes, residing in counties which he had de- 
clared in a state of insurrection. Let me ask ao;ain what evi- 
deuce has he brought forward against anv one of them. Were 
they guilty of assassination, or other offences which are de- 
nounced in his proclamation ? And if they were suspected, 
could they not have been readily arrested by process from a 
civil magistrate ? He aggravates the maltreatment and the 
injury done them by imprisonment and torture, and stands, 
before this high court as an accuser, yet not sustained by a 
particle of evidence. And, let me remind you here, senators, 
that men are not condemned in this country by classes. Every 
man stands before the law upon his individual conduct, not 
upon that of the neighbors around him. Each is to answer 
tor himself. The fact that a crime has been committed in a 
neighborhood, in a county, or in a state is no reason why the 
first citizens of that neighborhood, on* county or state who 
happened to be met by an avenging power shall atone for it. 
The freedom of this country requires that, before any person 


shall bo arrested or brouglit to trial lie shall have an oppor- 
tunity for an investigation ot the charge before a judicial mag- 
istrate, and that his guilt shall be shown, to the extent at least 
of probability : and that then lie shall have a proceeding before 
a grand jury to determine whether it is worth while to put him 
npon his trial, and a final trial before a petit jury of his peers 
to determine his ultimate fate. 

I have shown, on a former occasion, and I shall not repeat 
the argument now, that the executive of the state has no power 
to make arrests; that in the distribution of powers under our 
constitution, the legislative, executive and judicial departments 
of the state have each their several duties and powers : that the 
personal liberty of the citizen is under the especial care of the 
judiciary — and whether the matter may pertain to the arrest of 
persons accused of crime, or the enlargement of those com- 
plaining of having been illegally captured or detained, the 
question is solely of judicial cognizance. I cited to you 
authority to show- that the King of England could not authori 
the arrest of the meanest of his subjects on his warrant or 
order: that while " the King can do no wrong" according to 
the British constitution, and cannot be made to atone for such an 
act by indictment, or in damages, yet the man who should 
undertake in his name to arrest the meanest subject of the 
realm would be liable to indictment and an action for assault 
and battery. I have read authority, also, that when the courts 
of justice of the country are open it is a time ot peace — and if 
there be a time of peace the executive has no power to make 
arrests by military force. 

As to the matter of making arrests, it is hardly necessary 
before so intelligent a tribunal as this to call attention to 
those numerous- provisions in the declaration of rights in- 
tended for the security of personal liberty. It is there de- 
clared that habeas corpus shal 1 never he suspended :. 
that no man shall be arrested upon a general warrant, 
that no man shall be deseized of his liberties or privileges- 
except by duo process of law ; and other declarations to the 


same effect arc accumulated in order that this great subject of 
personal liberty shall not be misunderstood, and that he who 
runs may read. After all that has been proved, I am yet in 
doubt whether the magnitude of the offences committed by 
the respondent is fully realized ; that it is not distinctly seen 
that every essential security for the freedom of the citizen in 
the declaration of rights, over and besides the privilege of 
hah rpvs, were set aside and annulled. Violent arrests 

by rude soldiers, colored and white, without the presence of 
any peace officer, without any semblance of legal warrant- - 
bail refused — habeas corpus defied — confinement continued 
— torture by imprisonment — torture by threats of speedy 
death of the prisoners and of their women and children as 
well, with the burning of their dwellings in certain contin- 
gencies, and no hope held out of ultimate deliverance except 
through the tender mercies of a military court. And even 
after new light had dawned from an unexpected quarter by 
the issue of the writs of the federal judge, then thrusting a 
part of them into the common jail amid filth and vermin, as if 
to consummate the last act of revenge and degradation before 
the victims are wrested out of his hands. 

Senators, the atrocity of these crimes could not but call into 
exercise the power of impeachment, which has slept for a 
century in North Caroiina- 

They arc without official precedent within that period in the 
history of America or England. Our position then, is, that 
there was no insurrection in the counties of Alamance and 
Caswell. The governor declared insurrection when none 
existed. Doubtless there had been crimes committed in these 
counties, a few of them of a very flagrant character. These, 
neither the board of manrgers nor their counsel have any dis- 
position to palliate or excuse, whenever the perpetrators can be 
traced out or identified. But the abhorence in these cases of 
great aggravation, has been made much less intense, by reason 
<bt the exhibition of the long procession of the alleged wrongs 
of ballots, adulterers, thieves and other vicious characters, not 


infrequently subjects of unlawful treatment in any com- 
munity, by which tlxey have been accompanied. To repeat a 
saying of Bonaparte, much " foul linen has been brought out 
to be washed in public." I trust no inference will be drawn 
from this, unfavorable to the general state ot records in these 
counties ; since it is apparent that every scene of low vice and 
petty crime there, has been searched by the respondent to 
•swell the throng of sufferers from unlawful outrage, and to 
sustain his charge of insurrection, made against the whole 
people. Doubtless he has brought forward all of this descrip- 
tion ol characters, that could be found, and it is fair to presume, 
that the whole herd has been presented before this court. He 
would even exalt into martyrs, the abandoned votaries of lewd- 
less, who confess their faults in this public assembly, and ac- 
knowledge that they got no more in the way of punishment 
than they deserved. Great pains have also been taken to show, 
that no prosecutions had been instituted for the outrages com- 
plained of, and the inference is sought to be drawn, that this 
resulted from fear of further violence ; and that in some cases 
the sufferers left the county from apprehensions of this nature- — 
some abatement must also be made in the cases on this head, 
since it is manifest, that no small number of the alleged 
■sufferers were unwilling to enter a court of justice, had exposure 
and punishments of themselves for vice or crime should ac- 
company or follow the vindication of the wrongs, of which 
the} 7 complained. 

But it is perfectly manifest that when that proclamation was 
issued on the 7th of March, 18T0, there was no insurrection in 
Alamance. There had just occurred an atrocious act of assas- 
sination ; there had also been a number of lesser offences before 
that time ; but as to the eleven thousand people in the county — 
as to the great majority of the citizens there is no evidence that 
any individual of them participated in these crimes, save in the 
cases of some of the misdemeanors, and these could have been 
dealt with by the courts of justice as suchcases require. But 
there is evidence before you that the state of society there was 


generally tranquil, and so far as regards the colored race for whom, 
the respondent appears to have manifested so much interest — 
their relations with the whites were peaceful and friendly ; the 
usual business relations existing between them, work being given 
on the one hand and compensation on the other, cither in money or 
by a share ot the productions of the labor. And if there had been 
•any state of society requiring military interposition, military 
•aid was there ready. Simultaneously with this proclamation by 
the governor, there went to that county and encamped at its 
•court house, and stayed there five or six months, a company of 
troops of the United States. With this company stationed at 
the court house there was perfect tranquility in the county. 
From that time forward crime ceased. There is no evidence of 
the commission of a single crime of asy nature, from the time 
the United States troops arrived there, until Kirk's departure 
if I may except the single case of Puryear who disappeared 
within a week or two after the arrival of these troops. With 
that exception, there is no evidence before this court of any dis- 
order whatever and no semblance of anything approaching to in- 
surrection. And when the proclamation of insurrection was 
issued it was issued, not with a view to the condition of thino-s 
then, but to what subsequent events might develop as expedi- 
ent for the party ends whichthe respondent had in contempla- 
tion in the course of the summer. 

What is insurrection ? What is the meaning of placing a 
people in insurrection ? We have had some experience on the 
subject during the recent war. Certain states or sections were 
declared by acts of Congress to be in insurrection. What fol- 
lowed ? Why, military lines were established, intercourse 
between these sections and the people on the other side of the 
lines ceased and the public law in relation to the treatment of 
'enemies was enforced against them. The people thus -denounced 
were treated for the time being as if not a part of the national 
family. But what did the governor's proclamation in this 
instance amount to for three month's after it was issued? No 
more than the paper on which it was written. From March 

2288 coiiRT' oa impeachments. 

7th, when it bears elate, clown to Ji>ne 6th, when another procla- 
mation was issued, it was, himself as significance, 
and up to the loth July, .when Kirk went there-and commenced 
his arrests what was done towards these people ■ indicating that 
they were regarded, as -in a state of insurrection, and w«eseto be 
treated as insurgents \ Nothing at all. They bought and sold, 
they transacted all business as usual, they went and came and 
held their usual intercourse over these county lines as if no 
proclamation had been issued. The judge of probate of the 
county kept open his court, writs -were executed and returned 
to court, regular terms of the superior court were held, cases 
were tried. if there were any for trials — civil and criminal — not 
a word heard in regard to an insurrection or in regard to the 
people of Alamance being on a different tooting from any other 
people in North Carolina, until the arrival ot Kirk's command 
among them on the ,13th of July. The proclamation had been 
issued merely as a preparatory step to the violent, threatening 
and tyrannical courae of action, to be adopted just before and .ft 
the time of the -election in July and August. This proclama- 
tion went forth. I3ut what then ? Why, nothing more than 
it it hadn't gone forth. Nothing was done to distinguish these 
people, from the people ot any other county in the state. Every 
man was in the enjoyment ot the same rights he had before, 
and all the intercourse across their county lines on each ot 
the four sides was carried on precisely as it had been in prior 

Then 1 say this proclamation was issued not with the view of 
my present effect but that the governor. might be in. a position 
as military, men would, say, to he ready for • operations towards 
the first Thursday in. August and at as convenient a period 
before that time as the troops that were intended to be raised 
could be brought into the field. It was a proclamation without 
any results, with none of its legitimate consequences being 
instated upon, until midsummer, and then, it is used not as a 
means of security and peace to the country, but as a cover and 
■i. -.license for the outrages of .a lawless soldiery headed by equally 


— JUt 

lawless and Unprincipled officers. Meanwhile the company of 
United States troops which arrived early in March were still 
at their post, within a stone's throw ot the courthouse, keeping- 
guard' against any recurrence of violence or disorder, and quiet 
reigned throughout the country. Moreover, the regular term of 
the superior court, having jurisdiction of all crimes, had heen 
recently held : criminal trials had taken place, and judgments 
ot the most serious nature had been pronounced, and were im 
the course of being carried 1 into execution, the governor's pro- 
clamation of a state of insurrection in the county notwithstand- 

In this condition 1 of affairs, this state of quietness and order,, 
as if by an after-thought, long subsequent to the proclamation r 
Kirk's expedition, composed of "desperate and lawless men," 
as has been fully shown by proof — a body of men, calculated to 
produce disorder and provoke violence and resistance any- 
where, is suddenly gotten up ; and his men turned loose upon 
the people without any warrant of authority, except secret orders 
and lists of names furnished by the respondent as governor, to 
seize, vilify, imprison, torture and maltreat all whom he had 
denounced as proper subjects for such usages-; 

Why, with the United States troops there, where there was 
no resistence, and really no needof any military force, it was 
like carying coals to Newcastle — it was more— it was piling 
Pelion on Ossa to raise and send thither, five Hundred mora 
armed men under Kirk. Jteid the sequel proves that they 
w r erenot sent to act in the preservation of order and tlie* en* 
forcement of the law, but to override and subvert the 'law;' to 
deal with the people, as Sir Francis Head, in- a work of his on 
military topics, tells us conquered cities arc' dealt with, when 
delivered over to be sacked, by victorious* armies. Without" 
law and against law, from the mere caprice of the governor, or 
upon the accusation' of detectives and informers, whose names- 
are not yet known, the citizens are pounced upon as if they had 
been 'decreed to such a fate; domiciliary visitations are made 
into all sections of the country by armed bands of white amK 


colored men intermixed, no process shown, no questions asked 
except to identify the persons sought for capture ; and irom 
eichtv to one hundred men, in the county of Alamance alone, 
many of them the most exemplary characters in their several 
communities, were taken without notice, at any hour in the 
day or night, in many instances with horrid oaths, imprecations 
and threats of instant death, and hurried off to prison at a mili- 
tary camp. No explanations are given, no inquiries answered 
except by fresh insults. No time allowed for changes of cloth- 
ing from that in which they had been surprised while threshing 
their harvests — and they are to be detained, in defiance of 
habeas corpus, in mysterious reticence as to the doom impend- 
ing over them, except they had been placed outside of the pro- 
tection of the civil law and were to undergo the ordeal of a 
military commission — some, as in the case of that decrepid man 
and worthy citizen, Henderson Scott, were permitted to pay 
their way out by a douceur of fifty dollars in cash to Lieut. 
Col. Burgen, the commandant at the post, and others by barrels 
or other measures of Whisky, as in the instance of the Messrs. 
Curtis, to the same high functionary. These means of deliver- 
ance from the emissaries of the governor, then dominant over 
that devoted country, were far more potential than habeas 
corpus, the great boast of American jurisprudence. 

Xow, for what purpose were these troops of Kirk 
levied, and marched to that county 2 Certainly not to 
aid the civil authority. That had met no resistance ; and if 
it had, the U. S. troops were ample to sustain it. They went, 
as if in a campaign purely military, and against so many In- 
dians who were alleged to have committed hostilities, and whom 
they were going to chastise as a tribe, by fire and sword, with- 
out distinction of persons as to guilt or innocence. If there 
was any other object of the expedition, to be inferred from the 
manner of conducting it, besides this, of reducing the people 
to desperation and provoking them to resistance and war, it 
would seem to have been, the procurement of evidence of crimes 
already committed, by duress and torture, a practice forbidden 


by the common law from the earliest ages. And the feeble 
admonition of the respondent to Kirk by letter when he 
heard that the witness Patten had been hanged by the neck by 
Burgen, to extort confessions, is prefaced by the information, 
that such evidence would be worth nothing, and is so pointless 
of reproof, as to amount to more than halt an approval. The 
respondent says in his answer that the civil law had failed of 
effect — was incapable of detecting and punishing crime ; and 
therefore he resorted to the military. Is there any rule of law 
known by our system by which military power is able to obtain 
evidence in cases of crime imputed to citizens, which the civil 
courts cannot elicit, or by which the governor is to superceie 
the civil authority in cases where offenders cannot be discov- 
ered by legal evidence ? The whole pretension is but wicked 
and wanton usurpation. 

And the subjection of the three witnesses, Murray, Rogers 
and Patten, to torture and intimidation by threats of instant 
death by the rope and the pistol in the dark ess of midnight, 
in a solitary wood, as practiced by Burgen, was but a part of 
the plan concocted when the respondent and his partisans 
determined on raising such a force and setting on foot such 
an expedition. Although an officer in the regular army 
under Scott or under Sherman would have forfeited his life, 
or at least his commission, by thus maltreating citizens who 
were his prisoners, Burgen suffers no penalty for these fiend- 
like atrocities. On the contrary, it is in evidence that after 
the whole matter became public, the respondent writes to 
Judge Bond to come to Raleigh and see if he could not be 
released from the imprisonment to which, by reason of these 
military cruelties, he had been subjected by Judge Brooks. 
Entertaining the opinion that the respondent could not 
justify his conduct in raising this armed force in a time of 
peace, and making arbitrary arrests of men on his own order 
as governor of the state or commander-in-chief of the militia, 
I moved in an early stage of this trial to exclude much of the 
evidence offered by the defence ; because, in case of a plain, 

:2292 -court of impeachments. 

and palpable violation of the constitution, such as is here 
imputed, in disregarding and overriding all the most essential 
principles of our declaration of rights, the proof proposed to 
be introduced did not amount to a justification. The court, 
however, admitted the evidence of numerous violations of the 
law in Alamance and Caswell, but the establishment of any 
justification of the cause oi the respondent in the matters 
charged in the articles of .impeachment is as far off as before. 
The question still remains, whether .the governorof the state, 
who has been guilty of most unlawful acts by equally unlaw- 
ful means, can plead in his defence that his intentions were 
pure, and that there was a necessity .thus to act for the 
^preservation of the public .peace. In the first place the 
constitution provides for a state of public disturbance, and 
even of war, as well as for times of tranquility ; and the 
rales of personal .security, freedom from arrest, except upon 
warrant and probable cause of guilt shown before a judicial 
magistrate, unless in times of actual resistance to the law, when 
the courts of justice are not open, obtain under all circum- 
stances. There is no necessity which can authorize the execu- 
tive to assume the exercise of judicial power and seize the 
persons of citizens by its own discretionary order. But in the 
next place, the pretended necessity did .not exist. 

There was no insurrection in the county of Alamance. 
That the respondent admitted by the fact .that he did not proceed 
against her people as insurgents until nearly four months after he 
had issued his proclamation ; it is also proved by the circum- 
stance that a military force of the United States, sufficient to pre- 
serve order and maintain the peace, was and had been in that 
county ftsiTiithe very .date of the proclamation, and in all this 
time there had been .quietness and order. Kirk's force then 
was sent dnto the .county for no purpose of peace, but to de- 
grade and if possible to incite the inhabitants to resistance to 
his authority, to bring on a collision, to produce confusion, 
and thereby affect the pending election. It was sent not as a 
military to .aid the jmssc <Gamitatu$, to .assist in theexecu- 


fion of the law, but for the purpose of being set on the people, 
as blood hounds were brought from Cuba and set upon the 
Seminole Indians in Florida. It may be alleged that they 
were set upon bad men. The law recognizes no such instru- 
ments to be employed for making arrests even of bad men, 
while the civil authority was in the exercise of its functions. 

But who have been proven to be bad men ? Did they find 
evidence against any one of those eighty-odd in number who 
were arrested, to bind him over for a crime ? Not a word of 
it. !No proof was attempted on the return of the habeas corjpm 
writs. And in the searching examination of a hundred wit- 
nesses made here, have they found evidence upon which any 
man that was arrested could be charged with participation in 
murder, assault and battery, or other crime % No, sir. Kirk 
seems to have been sent out in a mere spirit of wantonness 
without regard to guilt in any individual ease, but to deal with 
the whole community as if every man was a malefactor : guilty 
even of murder by assassination. 

'But it is said 'the respondent declared the county in a state 
of insurrection under the act of January, 1870, and that hav- 
ing so declared it, he might, by authority of this act, treat all 
citizens as insurgents. I have suggested, senators, for your 
consideration heretofore, that the act ot 1869 and '70 was in- 
tended as a warning to the people of the county, and operated 
as nothing more thfm an admonition ; because the contrary 
construction makes it a highly penal act, while the language 
employed gives authority to the governor merely to declare the 
county in a state of insurrection, and to call into service the 
militia. to suppress insurrection. But no consequences of such 
a declaration are set forth. The act does not go on to say that 
the whole of the citizens in the county -shall be 'treated as in- 
surgents, whereas the acts of congress passed during the war 
declare that when a state or part of a state is declared in in- 
surrection intercourse should cease, lines should be established. 
of separation, and that the people thus cut off should be no 
.longer.treated as a part- of thejaeople who are friendly to the g«-v- 

22941 eomrr of evs^^ucseentSv 

eminent- But if this construction, be not tenable the inaction oa 
the respondent for five months after issuing the proclamation, 
as to Alamance, demonstrates- that he did not believe there was 
insurrection nor did he intend! to> act upon the presumption that 
there was — not until the 15th of July succeeding does he give- 
any intimation that a state of insurrection will be insisted on in 
the condition of the. inhabitants. lie then opens a military 
campaign against them — he proceeds to make arbitrary arrests- 
and haughtily refuses to show any authority or assign any cause 
for depriving men of their liberties except executive orders. If 
he had anything to charge against Bingham, Mebane, the 
Scotts, and the long catalogue of others, among whom will be 
recognized many oi the most respectable names in that region 
of the country, it had never been suspected before, and has not 
been proved since, but he tells this court in his answer that he 
arrested them all as "suspected, persons." If that had been true- 
the least he should have clone was to deliver over his prisoners 
as early as practicable to the civil authority. And, here let me- 
remark that it is the duty of the judiciary in such cases not to 
be content with a proclamation on paper.. But if a citizen com- 
plains that he has been restrained of his liberty, the judiciary 
should enquire whether there is insurrection upon a proper 
traverse of the return to a writ of habeas corjms, and should 
liberate him from custody if his- imprisonment be unjust. It is 
a great measure of our law that in judioionon cretitin nisi juru- 
tis — in matters of judgment credit is given to no one except 
those who are sworn. An official communication avowing that 
lie has authorized- such things to be done in violation of the 
Bights of the citizens is not to be treated in a court of justice 
as upon the filing of an affidavit. A peer of England may sit 
and try his peer without taking an oath. lie may, I believe, 
according to the old practice, put in an answer in chancery 
upon his honor, but if he wishes to arrest the meanest subject 
of the realm for poaching his manor, disturbing his game or any 
trifling crime, he must make an affidavit and incur all the pen- 
alties of perjury. So the governor of a state or any other offi- 


eial who seeks to justify the detaining of any man under arrest r 
must be sworn before he can ask the judge to consider him as 
responsible for the matter and to continue the imprisonment by 
his authority. 

I beg leave to call the attention of the court to a case on this 
head in the American Law Register. Congress had suspended 
the writ ot habeas corpus-^ or authorized the president to sus- 
pend it, in the year 1863, and it continued suspended until after 
the surrender of the southern araaies in 1805. A man who had 
been imprisoned under the president's order, in July 1S65, ap- 
plied for the writ of habeas corpus. The writ was awarded 
and when he was brought before the judge, the person who 
detained him made return that he held him under the order 
of the president under the act of congress ot July, 1SG3, which 
authorized the president by his order to detain persons " during 
the present rebellion." A judge of the supreme court of Penn- 
sylvania, who had awarded a writ determined that he would 
take judicial cognizance of the real state ot facts and ascertain 
whether the rebellion had not ceased. The southern armies 
had been surrendered, the war was over and he liberated the 
prisoners, I cite the case of the Commonwealth- on the rela- 
tion of Cozzens against II. A. Frink, page TOO, of American. 
Law Register. The marginal note reads as- follows : 

" The rebellion being ended, the authority of the president, 
" under the act of 3d March, 1863, to suspend, the privilege of 
" the writ ot habeas corjjus has expired. 

I read from the ease : 

" The relator, Cozzens, having been tried by court martial 
" for frauds in connection with contracts for furnishing supplies 
" to the war department, and the proceedings having been 
" transmitted to the department, was arrested by the provost 
'* marshal, whereupon he sued out this writ." 

The return was as follows : 

To the Hon. James Tiiompsox, 

Judge of the Sujyreme Court of Pennsylvania ." 

" The undersigned, one of the respondents in the within writ, 

2206 comrr of impeachments. 

"respectfully makes return thereto, that the relator, W. B. K. 
" Cozzens, was on the 29th of June, inst,, arrested by order of 
'"'this respondent, and is now detained by him as a prisoner. 
" under the authority of the president of the United States, and 
" that the other respondents mentioned in said writ are officers 
" and clerks under this respondent, and further sayeth not. 

" II. A. Frink, 
Col. and Provost Marshal of Philadelphia. 

" July 5th, 1865,'thefollowing opinion was delivered by 
*" Thompson, J. — This return is partly in accordance with the 
" act of congress of the 3d of March, 1803, § I, that whenever 
" the privilege of the writ of habeas corpus shall be suspended 
" by the president under the authority of the act, no military 
" or other officer shall be compelled in answer to any writ of 
" habeas corpus by authority of the president, but upon the 
"certificate Tinder oath of the officer that the prisoner is de- 
"tained under and by authority' of the president, further pro- 
ceedings under the writ shall be suspended by the judge or 
" court having issued it. This section authorizes the president 
"during the present rebellion, 1 ' whenever and wherever in hifi 
"judgment the public safety may require it, to suspend the 
"privilege of the writ of habeas corpus, and it is provided, 
"' that said suspension by the president shall remain in force 
" ' so long as said rebellion shall continue.' 

"On this return the important question is, whether on the 
" 29th of June last the rebellion continued or not. 

" This is a fact to be judicially determined like any other 
"fact. It is not for the president only, by proclamation to 
"" determine this, lie is not authorized to fix the status of the 
" country on this point by the act of congress. The power of 
" suspension depends on the fact of rebellion and its con- 
"tinuancc. It ceases with the rebellion and that fact is as 
" much within judicial congnizance as is any fact under which 
" rights exist and are held. As the privilege of the writ of 
" habeas corpus is a constitutional right of- every citizen, we are 


''''bound to observe a strict construction of every act which 
" threatens to deprive him of it. 

" We have an expression of legislative intent, which is plain, 
" that the suspension of the privilege of the writ is only to 
" continue 'during the rebellion. When that ceases the right 
" ot the president to continue the suspension ceases. The 
" courts are bound to give to the citizens his right under the 
" privilege. There is nothing prescribed as to what shall be 
" the evidence of it. It is, therefore, to be ascertained like any 
" other tact, by evidence appropriate to such a fact. 

" There is abundant evidence in the current history of the 
"■times that the rebellion no longer continues. We know its 
" organization is entirely destroyed, its armies captured or sur- 
" rendered, its officers imprisoned or paroled. In addition, we 
" know that our own armies are being as rapidly mustered out 
".as possible. The returning soldiers crowd our streets daily, 
" and we cease to look for battles and victories as events as 
".little to be expected as before rebellion commenced. There 
"is not a single known body of men in arms anywhere under 
" the once well .known organization called the ' confederate 
" states of America.' It is completely obliterated with all its 
".forces. Civil governmentlias been set up in all the rebellious 
"states but one, and trade opened by the proclamation of the 
".president, with -scarcely any restriction. Every fort, navy 
" yard and port is again under the government and entire con- 
",trol of the United States; and war has ceased everywhere in 
" the land. The time has arrived, therefore, when a return to the 
" enjoyment of civil rights, under civil government, must take 
" place and when by express limitation the suspension of the 
" habeas corpus should cease." 

The judge therefore ordered the' prisoners to be discharged. 

Now I submit, according to that authority, it is not for the 
governor of the state of North Carolina to deprive eleven 
thousand people in one county and sixteen thousand in another 
of their liberties by an insurrection proclaimed upon paper ; 
.and that when the iact is averred that no such Insurrection 


existed they are entitled to traverse the allegations of his agents" 
or of himself and to be released from custody if these allega- 
tions he found untrue. But whether that he or not, it is appa- 
rent that in this case no such insurrection existed, that at the 
time it bears date, the legal authority ot the county was in full 
operation. It is apparent that the officers of justice met with 
no difficulty in serving process and that the only matter which 
required remedy was that certain offences had been committed 
in secret and the perpetrators had not been, detected. And 
the question is, whether the governor can make' an insurrection 
out of a state of facts like that ;. and whether, having proclaimed 
insurrection, he has a light to go and arrest anybody that he 
happened to meet, no matter whom, and hold him in custody 
and make him atone for crimes which have been committed 
by others. But if the statute bears the construction for which 
the respondent's' counsel contend, and he had authority to arrest 
according to his judgment, he should be impeached and re- 
moved from office for a gross abuse of that power. It is 
said the power was discretionary. Granted, for the sake of 
argument. If he abuses discretionary power he is as much 
liable to be impeached for it is as for any other malad- 
ministration : and it may involve greater criminality than 
other acts of malfeasance because of his taking advantage of 
a trust reposed in him to the injury of the people over whom 
he has been appointed to rule. lie has a discretion to grant 
pardons ; but, if he grants a pardon from a corrupt motive he 
is liable to be impeached for it. So a judge has a power to 
grant new trials; but if he grants one from a corrupt motive,- 
he is liable to be impeached for it and to be expelled from office. 
So with all other public trusts constituting the offices of govern- 
ment. And here it i& proper to remark that the claim set up in 
his answer at page 25, that his actions within what he conceives 
to be his constitutional sphere, are not to be questioned by any 
other department ot the government, is a pretension altogether 
misapplied when he undertakes to assert it against the 1 authority 
of this high court of impeachment. It reads : 


" Further answering, this respondent says that the constitu- 
"' tion ot North Carolina and the laws then in force, vested in 
"" the government thereof a discretionary power to declare a 
" county to be in a state of insurrection, whenever in his judg- 
" ment the civil authorities thereof were unable to protect its 
■" citizens in the enjoyment of life and property, that full faith 
"and credit are to be given to the action of this respondent 
" as governor of North Carolina in declaring as aforesaid 
" the counties of Alamance and Caswell in a state of insur- 
" rection, and he submits and insists that his said action cannot 
" be questioned by any other department of the government." 

I admit that any other department of the government in the 
usual course of administration will not call in question a pardon 
he grants. The judiciary will allow the pardon to be pleaded 
and give the individual the benefit of it ; but they may call in 
question the motives under which the executive granted the 
pardon, and may find that exercise of power as great a crime 
as any man can commit in office. So they may call into ques- 
tion the necessary propriety or justice of his making procla- 
mation of insurrection, of his sleeping over it for four months, 
and then proceeding with an army levied contrary to law, to 
arrest men of the highest character, on pretence of their com- 
plicity in crime, a charge, of the truth of which he has at no 
time adduced any proof, and oppressed and wronged them in 
the manner detailed by the evidence in this case. The repre- 
sentatives of the people upon impeachment have a right to 
question the exercise of the power of any officer whatever, it 
matters not whether it be a discretionary power or any other 
power. If they find its exercise has been attended 
with a corrupt motive, they have a right to treat 
it as a crime, and to punish it to the extent of the power of the 
impeaching court. I can only attribute the error into which 
the repondent's counsel has fallen in this particular, to the fact 
that the impeaching power has been so seldom brought into 
action under the government of this old and peaceful state. 
It is a position which cannot be maintained, and which is in 


contravention of the very groundwork on which the impeach- 
ments were founded in the cases of Judges Chase and Peck, 
and indeed ot every impeachment that has been tried in this 
country. Nobody questioned the power of Judge Chase to 
make the ruling; which he made in the case out of wbieh arose 
the charges for which he was -tried, though not convicted. No- 
body questioned the mare power of Judge Peck to line and 
imprison Mr. Lawless on the contempt imputed to him,. but the 
majority of tho senate were of opinion that the power had 
been improperly exercised — not a sufficient majority to produce 
a conviction it is true, but there was no doubt with any one 
that it was an impeachable offence if the motive was corrupt. 

The respondent attempta-to fortify his allegations that there 
was ground for proclaiming insurrections, by going on to make 
certain other charges against the people of both Alamance and 
Caswell, which lie has utterly failed to make good by proofs. 

He says in his answer : " That a majority of the white adult 
" male citizens of the said county of. Alamance, and also ot the 
"county of Caswell, including the sheriff of said county of 
" Alamance, were members of the Kuklux organizations afore*- 
" said." 

lie has proved no such thing ;.not ten per cent, of the voters 
of Alamance, .and none of. the voters of Caswell, have been 
proved to have had any connection with such an organization. 
And as to those who had, it is proved by. Jacob A. Long, the 
most intelligent and reliable witness of all those examined on. 
this point, that, the organization of the White Brotherhood was 
dissolved and disbanded in Alamance in May or June, 1S69 ; 
that it contemplated no hostility. to the government or resistance 
to the laws,. and tliat its dissolution was occasioned by the fact 
that secret crimes had been .•committed which were charged on 
its members as.- the perpetrators. Almost all the secret offences 
proved were subsequent to the dissolution, and if not com- 
mitted by others, under the name of kuklux, as in the case of 
the colored par tv. under Allen Paisley, were done by parties in 
their several. neighborhoods, without any general concert and., 


so far as appears, without any political design. And there is 
no proof that any such organization ever existed in the county 
of Caswell. 

But there is another charge in this answer, a very grave one, 
made upon the whole people of these counties, which I am 
gratified to say has not been sustained by any proof. Dr. 
Johnson somewhere remarks that " lie who accuses all man- 
" kind convicts himself." He who makes accusations against 
large bodies of people, will generally be found to-be himself the 
author of a calumny. 

" Grand juries refused to find-true bills against members of 
" said organization," says this answer.': 

Where is ihe evidence of any such thing? You have had the 
solicitor of that circuit here, what did he pr.ove \ Why, that he 
sent a bill of indictment for a battery, by men in disguise, in 
one case, before a grand jury constituted of persons from both 
political parties of the county;- and that it was returned not a true 
bill, and the foreman of the' grand jury tells you that there was 
not a vote among all the members of the jury in favor of it. 
Now the respondent's accusation is, not that the grand jury 
failed to find true bills, — that is not what is charged in his 
answer, — but it would appear from this language that the solic- 
itor had sent bills which he was entitled to have found true 
bills ; and that they were returned, not true. Sir, there is no 
evidence of any such thing— on. the contrary, the prosecutor in 
the ca3e of the bill which was ignored, Joseph Harvey^ has been 
examined before this court and admitted here that he had been 
mistaken as to the identity of the parties charged- by- him with 
the offences in that bill.. There has been no proof that any bill 
of indictment failed to be found a true bill which was sustained 
by proper evidence. 

But the answer goes on thus : 

'• Or if perchance any were found against such members, petit 
juries refused to convict the same." 

Is there an evidence of such a trial ?. Is tlwe any pretence. 


of such, a state of corruption as that in the counties referred to ! 
Not the first particle. 

" Magistrates failed to act." 

Well, they appear to have had a pusilaminous magistracy 
in the town of Graham — in the persons of the two justices 
there, who say that they were afraid of personal conse- 
quences ; but it must be remembered that the governor himself 
in the first place appointed magistrates for the county under 
the present system ; and that his friends afterwards elected 
these, the only ones in the county who confessed that they were 
under fear. Yet they would not resign and give up their places 
to men who would do their duty. It is not, therefore, for him 
to complain of recreancy of his own appointees and special 

In a note to the old edition of Marshall's Life of Washington — 
in the account of Shay's rebellion — there is mentioned a 
j udge in Massachusetts, by name Cobb, who had been an officer 
in the revolutionary army. There was great excitement against 
judges and lawyers, and interruptions in many places to the 
holding of the courts. This judge, being informed that there 
was danger of a mob at a place where it was his duty to hold his 
court, and advised that it might be prudent not to attend, his 
propt reply was, " I am determined to sit as a judge or die as a 
general." Judge Marshall records this noble sentiment as 
worthy of the best characters in Plutarch, with evident satisfac- 
tion. That is the spirit that the judicial officers of this country 
must manifest if they intend to perform their duties to the peo- 
ple; and if they do not so intend let them give place to others 
who do and the majesty of the law will readily prevail. 

These offices were not established as provisions for the in- 
cumbents, but to administer the law and preserve the peace 
of the community ; and an unmanly fear is no more to be 
tolerated as an apology for failure in duty in these important 
civil trusts, than it should bo in a soldier who deserted his 
post on the approach of danger. 

Again, the answer continues : 


"The judge and solicitor of the district attended the courts 
" merely as a matter of form." 

I don't know what the judge would say to that. He has 
not been brought here, but we heard what the solicitor had 
to say, and he did not seem to think there had been any 
great cessation of justice in these counties. He said, there 
were many complaints of crimes committed by persons in 
disguise where he could not find evidence on which to found 
indictments. But to the question whether there were not 
also many complaints of arson, burglary, larceny and the like 
crimes done in secret where the perpetrators had not been 
discovered and prosecuted, his answer was, " Yes, a gi 
many." " You could not find out who did them V ' : Xo.'> 
So it was with these offenses. As to the soundness of the 
people of these counties, as to their integrity in the per- 
formance of their duties as jurors or in general as magistral 
there has been no proof of anything to their disparagement 
except those two justices of the peace who testified to their 
own personal fear. 

Mr. Stephen White, another justice and a republican in 
party association, though he thought the relations between 
the two races were not friendly but the contrary, vet says 
that he as a magistrate would at all times have issued a war- 
rant against any man if his accusers had come forward and 
made complaint according to law. 

The answer of the respondent goes on to say further, 

" That a reign of terror existed and the administration of 
"justice was wholly impeded." 

" In no one instance had the perpetrators of the crimes and 
"felonies herein detailed and set forth been brought to justice ; 
"men, obnoxious to the illegal organizations aforesaid, dare not. 
" sleep beneath their roofs at night, but abandoning their wives 
" and children wandered in the woods till day. Murder .-talked 
" abroad in the land, and those whose hands were red with the 
" blood of their victims remained unnoticed and unpunished." 

Meaning that they were known to the county, but that they 


were not noticed or punished as criminals. This is all line 
rhetoric, but what evidence have you heard of the facts alleged ? 
.Yre they not all either invented or grossly exaggerated ? It is 
not denied, and is far from being countenanced or approved 
by the managers or their counsel in this prosecution, that many 
illegal acts had been done by men in disguise in the county of 
Alamance, and a few in the county of Caswell, some of those in 
both counties being of great atrocity; and that being commit- 
ted in secret, and usually under cover of night as well as under 
masks concealing the person, the offenders eluded detection 
and had not been prosecuted. But as to these grave imputa 
rations of corruption in the magistrates, in the grand and petit 
juries and the majority of the white inhabitants, so that justice 
could not be administeredin the courts, and that known murderers 
or other offenders were stalking abroad without arrest or pun- 
ishment, and that all this proceeded from a political combina- 
tion to overthrow the government or to counteract its policy as 
regards the colored population, they are gross calumnies, wholly 
unsupported by proof. 

Fortunately, senators, these things depend not upon what 
lie has alleged, but what has been proved. 

It is not proved that any secret organization ex isteds at all, 
in the county of Caswell, and it is not proved that in the 
county of Alamance it affected the administration of justice in 
the least degree. 

No doubt some of the victims of secret violence may have 
been deterred by fear of further consequences from attempting 
prosecutions, v. ho were innocent of any offence. These com- 
mand the sympathy and would have commanded the ready 

istance of all good men, upon prompt application for redress. 
There were others, according to their own acknowlement, and 
probably not a t'cw, that have made no open admission, who 

■ : scions of their vices or crimes, and calculating the chances 
of their own punishment or exposure, concluded that it was 
; est to submit without complaint. 

Others again, I speak now exclusively of the colored people, 


taught by their leagues that all the whites not of their political 
party were their enemies, a delusion of which their dema- 
gogies will not allow them to be divested, made only a clamor 
among their immediate associates or in the leagues, who 
readily caught up the affair to he reported to the governor, a 
leaguer himself, to swell the list of outrages in the next procla- 
mation ; hut they sought no vindication by law. Whereas if 
they could identify the offenders, and had appealed to any re- 
spectable neighbor, they might have found friends who would 
have advised and aided them in obtaining redress. 

Henderson Coble, a respectable colored man, readily found 
such a friend in his neighbor, William Holmes, a former magis- 
rate, and upon his advice readily found the means of bringing 
to justice and consigning to the penitentiary the colored band 
calling themselves Kuklux, who wore the disguises and 
insignia of the order, (led by Allen Paisley, a preacher, 
teacher and member of the Loyal League,) who had inflicted 
stripes upon him. But not so with the timid magistrates at 
Graham. Two or three cases are brought before them, where 
the offenders were successful in concealing their indentity, and 
ail hope of success in such prosecutions is abandoned. " Nobody 
had been punished," though many offences were rumored to 
have occurred, say these sworn magistrates of the law, and 
therefore they determined to issue no more warrants in such 
cases. Did it never occur to them that our law requires the same 
activity on the part of those who have suffered injuries or claim 
its protection — diligence and determination on the part of the 
. sworn conservators of the peace ? Surely no offender ever will bo 
punished nnless some one is produced to prove the offence 
against a person charged with it according to law, and unless 
magistrates shall do their duty in arrest and commitment ; nor 
can grand juries or petit juries perform their office in subjecting 
criminals to punishment unless evidence is procured of the 
crimes imputed. The real grievances which occurred in the 
counties in question, show great need of a reform in the agents 
of j ustice there, but none for ignoring the whole machinerv 


of the civil law, as was by done the respondent, making a 
military expedition into these counties as hostile provinces and 
substituting his orders for law, in plain violation of the con- 

The respondent seems to have set out in the execution of his 
high office with a morbid feeling of partizanship, and a dispo- 
sition to convert every crime in the calendar which occurred 
after his accession to power into some kind of political hostility ; 
and very ungraciously, I think, goes hack to the protest of 
Governor Worth at the time he surrendered the office by the 
order of Gen. Canby, making a change in the government by 
the authority of congress and the elections held under its direc- 
tion. True, it is disclaimed on the part of the counsel that any 
imputation was intended upon the memory of Mr. Worth. I 
don't think any such disclaimer is made by the respondent in 
his answer. Yet I think the people of North Carolina, of all 
parties, now that he has gone beyond the " bourne whence no 
traveller returns," will say that his action in office was emi- 
nently useful and just, and even his exit from it was patriotic 
and fearless. But when he yielded up the reins of authority, 
he did it in honor and good faith, and would, as would the 
friends he represented, have scorned any petty annoyances to 
regular government, and much less have plotted its overthrow 
by violence. The idea that any man, at this day, should be so 
mad as to suppose that the government of the state, and 
much more the government of the United States, could be 
overturned by force, is one that could enter into the mind 
of none except a person of diseased and distempered 
imagination. It is not within the range of any sane man's 
calculations. Besides, all who take |a philosophic view of it, 
will, I think, agree that this republican system of ours, even 
though changes have been made in it that were distasteful to 
many of us, is now so much better than any other system 
existing in the world, that no man would think of changing it 
for another or incurring the hazards of anarchy for its over- 
throw. On the contrary, the people expect to live under it, to 


abide by it, to give to their constitution a fair and honest con- 
struction, to reform it in the particulars in which, it is not suited 
to their condition, but without contravening the late require- 
ments of congress, or any curtailment of the rights of the colored 
race. This is the view of all intelligent men. And yet there is 
found throughout the respondent's answer a constant complaint, 
that the freedmen had not been allowed the free exercise of the 
right of suffrage ; and that to secure it to them was a chief end of 
his military expedition. lie states that " proclamation after pro- 
clamation has been issued." That is true. There have not been 
so many proclamations issued by a public functionary since the 
days of Henry VIII. And what do they contain ? Do you 
ever see in them the word " arson," " burglary," or " larceny," 
or any offence except something that indicates oppression to- 
wards the colored people or to party men ? No, sir. These pro- 
clamations are issued from time to time and there is complaint 
made that outrages are committed upon the person in many 

Parenthetically it is thrown into one of them that the res- 
pondent understands there have been some burnings by way 
of retaliation, bnt the facts and dates are not given to show 
whether the personal injuries in the burnings were of prior 
occurrence. Both were great violations of the law, and an im- 
partial magistrate, desirous only of the public peace, would have 
been very careful in his enquiries, before he assumed that the acts 
of incendiarism to which allusion is not very pointedly made, 
were consequences and not causes of the outrages upon persons, 
which is the only subject of serious denunciation. The proof 
was, that some of the homicides mentioned in the proclama- 
tions and in the answer, all unjustifiable as they were, were 
committed upon the persons of men accused of burning to ashes 
three barns in the same neighborhood and at the same moment 
of time. 

Another object of great solicitude in these proclamations is, 
that all citizens, especially those of the colored race, should be 
secured in their right to vote as they chose : a privilege, the ex- 


erciso of which, the reader would suppose, they were in great 
danger ot being deprived. Now we have had a very searching 
investigation here. Has it been proved that any of the colored 
people have not been afowed to vote as they wished either in 
the county of Alamance or Caswell ? On the contrary has it 
not been shown that they voted uniformly the republican ticket 
en masse, with rare exceptions to the contrary, — the very end 
for which they were marshaled into Leagues, of which the 
respondent was a High Priest? 

This feature in the proclamations was merely one of 
the old devices of party to hold every colored man to his 
party-fealty and insure his attendance at the polls, by rep- 
resenting that his right to suffrage was threatened, but 
that the governor championed his cause. The pretext that 
an armed force was necessary to secure to the colored men 
the free exercise of their right of suffrage was as groundless as 
the calumnies upon the integrity of the grand and petit 
juries and the general administration of justice in those 
counties. You had before you, among the best witnesses 
for the defence, Wilson Carey, a colored member of the late 
legislature, from the county of Caswell. While he represents 
that the political feeling between parties was bitter, he at the 
same time admitted that the black race had the majority of 
voters in the county, and that they had voted as they pleased ; 
that although some two or three white men, as he understood, 
had declared that they would employ no one who did not vote 
the conservative ticket, the elections in general had been fairly 
conducted, and no troops Avere needed on that account. It is 
fe^ually apparent that there was no such necessity in the county 
ot Alamance, where the only interference with elections shown 
was in the proscription of white men for voting on the conser- 
vative side. But let it never for a moment be forgotten that 
troops of the United States sufficient for any purpose of military 
aid were stationed in both counties before the arrival of Kirk. 

The respondent, instead ot devoting himself in his high office 
to those noble studies by which states are made prosperous and 


their people happy, seems to have considered himself as the 
occupant of a garrison in a hostile country, carrying on a war- 
fare with a people who were seeking to overthrow the govern- 
ment by some illegitimate and rebellious means ; when in truth 
and in fact, the hostilities he so much dreaded were not directed 
against the government, but against the men in power, ot whom 
he was the chief, who had abused their trusts and perverted their 
power to the injury and well nigh to the ruin of their country. 
It was the people formed by a sense of enormous abuses on the 
part of public agents into a more powerful party than Lad 
ever before been seen in this state, attempting through the ap- 
pointed means of an election, to apply the proper corrective^ 
that he affected to consider an enemy in insurrection, requiring 
a military force under state authority for its suppression in June. 
July and August, 1870. As to secret outrages they had ceased 
in Alamance for three months: in Caswell there had been but 
few cases of the kind altogether, though some in each county had 
been atrocious assassinations : but the federal force was ample 
for any military need. Kirk's force, a state army under tie 
command of the governor, was wanted for no purpose but to 
control the election and make a last desperate effort to prese: ve 
the ascendency of parry. The dominion of parties in a repub- 
lic, when elections are free, must often fluctuate ; but the hope 
of the patriot is that the republic itself will endure. The party 
which formed and put in operation the federal constitution, at 
the end of twelve years, was ejected from power never again to 
be restored. And any like period of twelve years has witnessed 
very considerable changes in the successes or composition 
of parties. But the country itself has survived all these fluc- 
tuations : and looking back upon the past with the eyes of 
patriots, and not of partisans, we are obliged to confess, that in 
the main it has been wisely and happily governed. To ensure 
like results in the future, there must be, as in the past, before 
the convulsion of the great civil war, a sacred observance of 
two maxims, first, that elections shall be free and, second, that 
there shall be an honest acquiescence in the decision of majori- 


ties fairly expressed according to the provisions of the constitu- 
tion, state or federal. These principles are so vital to republi- 
can government, that the party which shall resort to force to 
counteract them will onlv hasten its own destruction. 

But to return to the act of assembly under which 
the governor had the power to declare a county in insurrection : 
as originally introduced we have seen there was a clause pro- 
viding that application should be made to congress for a sus- 
pension of the writ of It ulcus corpus. The legislature of 
North Carolina could not abide that, and they struck it out. 
They authorized proclamation of insurrection to be made, and 
allowed the governor to call into service the militia in order to 
suppress the insurrection. But the act goes on to provide for 
a judicial trial, and never contemplated any other mode of trial. 

By declaring that on motion ot the solicitor of the district, 
or of his own will, the judge may orier "the removal of the 
" trial of any person who has been, or who hereafter may be in- 
" dieted in any county in the state for murder, conspiracy or viola- 
" tion of an act entitled ' An act making the act of going masked, 
"disguised or painted a felony, from the county in which such 
'offence may have been committed to such other county in 
" his district or adjoining district as the solicitor may designate. " 

Granting, then, that after having declared insurrection, the 
governor had power to make arbitrary arrests upon his own 
order without warrant, what was to follow ? Why certainly 
to deliver his prisoners over to the civil authority, where the 
solicitor could take them in hand and prosecute according 
to the directions of the statute, before a judge and jury in 
some impartial county. Is this the course he pursued '? JS T o, 
the very contrary. He avails himself fully of the power to 
make arbitrary arrests, if that was intentcd, of one hundred 
persons or more, but sends no one to be tried before a civil 
tribunal, and holds them all fast for his military judicature? 
and contemns the writ of habeas corpus, to enquire into his 
proceedings. What ground of pretence for authority does the 
statute afford for this effrontery and contumacy on the part of 


the respondent \ Even when the privilege of the writ of 
habeas corpus is suspended in time of invasion or rebellion, a 
warrant of some kind is necessary to authorize arrests. This 
was demonstrated by Mr. Horace Binney, of Philadelphia, 
during- the late war, when, aroused by the pretensions of the 
military power, he issued a pamphlet in defence of the right 
of the citizen to the privilege of habeas corpus, in which he 
demonstrated that the only effect of a suspension of the writ- 
was to place the people of the country in the condition in which 
our English ancestors were before the passage of the statute of 
Charles II ; that a warrant from some person in authority was al- 
ways necessary in order to deprive a civilian of his liberty ; that a 
suspension of the privilege of the writ in England was uniformly 
made by an act declaring that in cases where it appeared the 
arrest was made by the order of a Privy Counsellor or Cabinet 
Minister, or it may be some other functionary, there should be 
no further inquiry into the cause of detention. And Mr. 
I>inney demonstrated, that the only effect of a suspension here, 
was to give a like consequence to a detention by order of the 
President of the United States. But no Avhere is such a conse- 
quence attached to the orders of a governor of this state — the 
constitution forbids the suspension of the privilege of the writ 
under any circumstances. The statute in question, as originally, 
proposed, designed to procure it through the president, 
under the authority of congress; but this was stricken out on 
its passage. lie is thus fully apprized, not only of the inter- 
dict in the state constitution, but that the legislature, composed 
in great majority of his party friends, had refused to ask for a 
suspension ; but still eager to get out of the trammels of the 
declaration of rights and the constitution and to establish a reign 
of military law, he makes a direct appeal to the delegation in 
congress from this state in the following letter, dated 10th of 
March, 1870, which I will read : 


" To the Senators and Representatives in the 

" Congress of the United States from Worth Carolina : 

" Gentlemen : I have been compelled to declare the county 
"of Alamance in a state of insurrection. I have called on the 
"president for aid, but he is restricted by the writ of habeas 
"corpus. We want military tribunals by which assassins and 
" murderers can be summarily tried and shot, but we cannot 
" have these tribunals unless the president is authorized to sus- 
"pendthe habeas corpus in certain localities. Please aid in 
" conferring this power on the president as the only effective 
" mode of protecting life and property in Alamance and other 
"localities in this state. 1 ' 

On the day following he addresses this communication to 
Mr. Abbott, one ot the senators, by telegraph, dated March 
17th, 1870: 

" What is being done to protect good citizens in Alamance 
" county i We have federal troops, but we want power to act. 
''Is it possible the government will abandon its loyal people to 
"be whipped and hanged? The habeas corpus should be at 
••once suspended, &e." 

The congress, as might have been expected in a time of peace, 
did not grant the application, if any was made. But the re- 
spondent with full knowledge of the positive injunction in the 
declaration of rights, that the legislature of North Carolina[had 
refused to ask any suspension, and that the congress of the 
United States, notwithstanding his importunity to its members, 
had i'ailed to respond to his wishes, and in the absence of any 
pretence of authorization by the president, more than three 
months subsequently, when the county was in perfect tran- 
quility, undertook himself,- by mere executive orders, to make 
arrests, to hold his prisoners in defiance of the writ of habeas 
rorjn/.H, and wonderful to relate! actually proceeded to appoint 
a military commission to try them as prisoners amenable to 
military law. 

In a letter in his own proper handwriting, among those 
found in the court house in Graham, dated July 17th, he in- 


forms Kirk that " there are more arrests to be made, but the 
" next list will be furnished to the judge advocate ; the court 
" will'assemble on the 25th of July." Kirk, also, when served 
with the first writs of habeas corpus, told Mr. McAlister, who 
delivered the process, that " a court had been already ap- 
pointed for the trial of the prisoners." But in a letter dated 
August 3d, 1870. introduced by the defence, the respondent 
addresses Kirk thus : " I should like to have the names of 
" officers in your regiment, who would be suitable, to compose 
" a part of the military court. The pending election and the 
" necessity for some of the officers to be absent on duty have 
'' prevented the meeting of the court as early as I wished it. 
"It will meet one day next week. It is important to have 
" all the evidence that can be procured. The following 
" officers, besides those of your regiment, will compose the 
" court : Major-General W. D. Jones, Brigadier-General C- 
" 8. Moring, Brigadier-General \V. II. Albright, Col. JJ. M. 
" Bay, Major L. W. Hardin, Captain II. W. Hancock. This 
" will leave six to be supplied by your regiment, and the 
" court will consist of thirteen." 

These, Mr. Chief Justice and senators, are the sages who 
are to supersede the judges and juries appointed by law for 
the trial of citizens accused of crime ; and their trial is to be 
conducted, not according to ths doctrines of the bill of rights, 
of Coke, Foster or Blackstone, but by the laws and usages of 
war as expressed by Turenne or Yanbau, McComb or Halleck — 
authors who have doubtless been profoundly studied by 
these Improvised heroes, some of whom were offered here as 

Snch was the tribunal before which more than one hundred 
men were to have been tried for offences of the greatest mag- 
nitude, but of which they had had no specification up to the 
time they were delivered out of custody by the timely and 
beneficent interposition of the federal judge. To this end 
they had been suddenly and rudely seized and thrust into 
prison ; to this end they were denied bail, held in close con- 


fmement, except in a few instances of military parole, com- 
pelled to listen to the low and obscene songs and conversa- 
tions of a rabble soldiery, who, in the language of one of the 
witnesses, seemed to be acquainted with civilization only in 
its vices of profane swearing and gambling ; to hear the oaths 
and imprecations of the commander of the force, with threats 
to put them to instant death and to burn down their houses 
and destroy their women and children in certain contin- 
gencies, which he deemed of very probable occurrence. And 
when the respondent and his instruments in this most unlawful 
and wicked design against the lives and liberty of their victims, 
found themselves foiled in their purpose, as a last device of 
cruelty and revenge, a few of those most obnoxious to them 
were immured amid tilth and vermin in a common jail, under 
the circumstances of indignity detailed in the evidence. 

xTow, has there been any justification shown for the conduct 
of the respondent, or even excuse? No citizen of the county of 
Alamance or Caswell had ever solicited or suggested the send- 
ing of such an expedition as a remedy for the outrages which 
had occurred in those counties. Upon the occurrence of the 
death of Outlaw, five citizens of Alamance communicated the 
intelligence to the governor, and recommended that a militia 
force should be called out from the county, and that Henry M. 
Kay should be placed in command of it. To this natural and 
appropriate suggestion he made no response. He was equally 
reticent in reply to two suggestions made in the letter of Dr. 
Pride Jones, accepting an appointment of captain of militia in 
the county of Orange, namely, that if his authority were in- 
tended to treat with the Leagues as well as the Kuklux, and 
into Alamance as well as Orange, he thought he could exert a 
beneficial influence. The governor, it has been shown, was a 
propagandist of the League, and therefore may have preferred 
to attend to that particular association himself ; and as for the 
county of Alamance, he seems to have reserved it for a special 
and peculiar destiny. With a population of 11,000$ it could 
probably have furnished two regiments of militia, indepen- 


dently of the colored men, now to be added to this organization. 
It might be objected, that from local causes, such as have been 
alleged by the respondent, it was not proper to call into service 
the militia of that county. Well, it has been proved that 
those who suggested this call were perfectly satisfied with the 
substitution of federal troops ; and no one asked for any addi- 
tion to this force of one well appointed company, which 
arrived early in March, within a few days after the murder of 
Outlaw. Their presence answered every purpose lor which a 
military force could have been desired. With the exception of 
the case of the disappearance of Puryear, who is as likely to 
have come to his end by the hands ol his own race as by those 
ot the other, and by the connivance of his own family as 
probably as by that of any known enemies, violence and crimes 
ceased, and general tranquility prevailed. For the period of 
three months poor Outlaw and Puryear slept quietly in their 
graves, without so much notice from the executive as the com- 
mon tribute of the offer of a reward for the detection of their 
murderers. Not until about the time of an assemblage of 
politicians at the governor's office to consult as to raising a state 
military force, was a proclamation issued, offering a re- 
ward of five hundred dollars, and then these cases were 
included in a collection of others, as if merely to swell the list 
of such occurrences in the state. Until this time, also, and 
indeed until the 15th of July following, it never was perceived 
that the proclamation of the Ttli of March, declaring the 
county of Alamance in a state of insurrection, had had the least 
effect upon the rights of any of her citizens. 

Mr. Chief Justice and senators, much has been said in the 
discussions of questions of evidence in this trial, upon the inten- 
tion of the respondent in issuing these proclamations of insur- 
rection, and justifying his arrests by reason of an imputed con- 
dition of insurrection therein. I insist, that a paper insurrec- 
tion, like a paper blockade, amounts to nothing unless the 
author of it shows that he is himself in earnest in enforcing the 
consequences of the act he proclaims ; and that from the evi- 


dence before this court, it is apparent that the respondent at 
the time he proclaimed the counties in question to be in a state 
of insurrection, did not believe them to be in that state ; and 
that in fact they were not in such a condition ; and that his 
subsequent trespass upon, and maltreatment of, their inhabi- 
tants, were wanton injuries designed to provoke resistance and 
justify the employment of force to control the election in Au- 
gust, 1870. This is manifest : 

1st. From the long delay in treating the citizens of Alamance, 
especially, as if they were in a state of insurrection ; permitting 
their unrestrained intercourse with other parts of the state; 
their courts to sit and dispense justice, and all the other con- 
ditions of a state of perfect peace. 

2nd. From the presence of the United States troops and the 
absolute demonstration that there was no resistance to the law, 
nor reasonable ground for any apprehension ot resistance. 

3d. The ignoring entirely ol the civil officers and setting 
them at naught, from the highest to the lowest; the appoint- 
ing of a military commission to try the persons arrested, and 
the disregard and defiance of the writ of habeas corjms to carry 
this object into effect — an object which he had longed for and 
sought to effect lawfully at first, but which he at last had deter- 
mined to carry out, with full knowledge of his want of any 
legitimate authority. 

4th. From the character of Kirk and his troops, the last in- 
struments that any sane official would have employed to pro- 
mote peace. Instead of taking for a commander a man of char- 
acter from among our own citizens, whose name would have in- 
spired confidence in his purpose to do right, with a body of 
militia composed of respectable and orderly men, and appoint- 
ing them to the duty of arresting prisoners and delivering 
them over to the civil magistrate, the introduction of a stranger 
with certainly the character of a brigand in this state, with an 
army composed in great part of foreign mercenaries, and of un- 
disciplined and lawless recruits from the frontier of the state, 
was an insult and an offence to the pride, manhood and self- 


respect of the people, calculated to provoke the fiercest colli- 

5th. From the savage appeal for recruits to the soldiers in 
the regiment he lately commanded in the civil war in the name 
of Kirk, but which we proved to have been written by the hand 
of the respondent himself. It was published in a placard in 
large letters and circulated through the country like a battle 
cry, awakening all the revengefnl feelings of border warfare in 
the late great struggle : or perhaps even more like the war-whoop 
of the Indian calling his tribes to embark in an expedition in 
which they were to glut their vengeance in the blood of their 
enemies. The governor of the state, in the name of Kirk, 
exhorts the men of the old " second and third regiments," and 
such others as will enlist with them, to rally against " midnight 
assassins," yes, and "southern chivalry," the latter being 
terms of reproachful and contemptuous irony, intended to 
rekindle the bitter feuds and smouldering embers of sectional 
hatred. It is difficult to conceive an effusion of a more dia- 
bolical spirit and mischievous tendency than this production of 
the respondent, printed secretly at the Standard office in 
Raleigh, with its array of capitals and catchwords and fiery 
appeals, to be circulated in East Tennessee and a few counties 
in Korth Carolina, in which, during our recent war, the people 
of neighboring communities had met each other in deadly 

6th. The mischievous design of the whole proceeding is further 
manifest from the suppression and absence from the executive 
letter book and journals of the office of the adjutant general of 
all correspondence touching this insurrection, save two letters 
and one telegram: and the mysterious removal from the state, 
just after this impeachment was instituted, but a few hours 
before the telegraphic operators were summoned, of all tele- 
graphic messages from the two stations at Raleigh and Company 
Shops, obviously to prevent their introduction as evidence. 
Omnia ]yrcmrnuntwr contra spoUatorem . 

Equally barren is the journal of the council of state, a body 


provided to advise the governor in the lawful execution of the 
duties of his office, of all information concerning this military 
movement. Their consultation or advice seems never to have 
been sought in any manner whatever. 

7th. I3ut certain letters found in the court house of Alamance, 
just after the departure of Kirk, give us a very full insight into 
the operations of the governor's mind on this subject. Com- 
mencing on the 17th of July, he says to Kirk : 

" The company in Dallas, Gaston, will be under your com- 
" mand, W. S. McKee, captain. He will be mustered in 
" to-morrow. It will be well to let them remain in Gaston, as 
" their votes will be needed, and they can have control over 

" Gaston, Lincoln and Catawba. 1 ' 

" They can have control." What docs that mean ? That 
they will bring out the election as we want it. 

" Twenty or thirty of your men should be sent to Shelby, 
" Cleaveland county, to keep an eye on Plato Durham's friends 
" and prevent intimidation of voters." 

He has two objects in view, one to keep an eye on Plato 
Durham's friends, and the other to prevent voters from being 
intimidated; whether it is to keep the friends of Mr. Durham 
from going to the polls as well as to prevent intimidation of 
his own friends, we do not know ; but the hint is sufficient to 
enable Kirk to construe it to suit his wishes. 

The governor in this military correspondence of so essential 
and important a nature mingles a little politics. He says : 

" Our friends in the mountain counties are very much con- 
cerned about the loss of votes by the absence of your men. 
" Send as many as you can spare to Asheville, Marshall and 
" Bnrnsville so that they can vote and return. Some men 
" will be actually needed in Asheville and at Burnsville, to 
" ensure a free election." 

" I would be glad to have a full report of — [rest of this para- 
" graph lost] 

" The lawyers are exhausting every expedient, but they will 
"fail. This is their last movement. It is important that (he 


"chief justice, who is substantially sustaining me, should be 
" very courteously treated in the person of his messenger. 

' l You can confide fully in Mr. Neathery, and I wish you, to 
" send me list of prisoners and witnesses together with the 
" proof in each case. 

Sir, he ought to be very much obliged to those lawyers. We 
see in the argument of Milligan's case that if he had proceeded 
with his military operations and put any one of those men to 
death, he would have been hanged for it, just as soon as any 
murderer guilty of that offence by the law of the land. In that 
argument is cited the case of Governor "Wall, a British colonial 
governor in one of the West India islands, who undertook to 
supercede the civil by military law and caused a man to be tried 
by military commission and put to death. It is said that " the mill 
of providence grinds slowly but it grinds very fine." Twenty 
years passed by before it was ascertained in England that this 
act had been committed ; but even after this lapse of time 
Governor Wall was brought home, tried, condemned and 
executed. And so it would have been had death been inflicted 
on any prisoner in this case ; and so it ought to be with every 
man in official position who endeavors to supercede the laws of 
the land and institute other tribunals to take away the lives of 

The character of the men arrested show that he had no pur- 
pose to detect criminals. If he had seized upon habitual 
breakers of the public peace, men of low morals and dissipated 
habits, who might without very violent presumption have been 
suspected of proneness to crime, there might have been some 
semblance of excuse for such a proceeding ; but to go into a 
county and seize some of the very best men in the whole commu- 
nity, and who are recognized as such there and elsewhere in 
the state, evinces a most insane purpose to degrade the people 
of the country and to provoke strife. lie professed that he was in 
quest of men belonging to those secret organizations and, as 
such, the authors or instigators of crime. Of the eighty odd 
men in Alamance whom Kirk arrested, I do not think a dozen 


aa*e shown, to Lave "belonged to these organizations ; and anion": 
those who did, with all the lights of subsequent disclosures y 
none are implicated, even by doubtful evidence, in any high 
crime or misdemeanor. 

And the treatment that' these prisoners received alter they, 
were arrested, shows the design of the respondent further to 
provoke and Bring on strife, were it possible to accomplish it. . 
lie cannot disguise his motives by going into a tirade against 
die secret societies to., winch the managers in this prosecution 
ami their counsel and the people whom they represent in the • 
other house give no approbation or countenance whatever, 
lie cannot conceal :r.s motives in these transactions by the 
great zeal he manifests to suppress those organizations. The 
difference between him and them is but little; Both are gross 
, . lators of the law. It is said, that "hypocrisy is the tribute 
which vice pays to virtue," — secrecy is the tribute which crime 
pays to justice. They did nofedare to come out in open day; 
they went rbout their operations in the night, under disguise 
and concealment; in that way the}' perpetrated their crimes, if 
as organizations they intended crime, and those who assumed 
their name and followed their example, acted in like manner. , 

But the respondent mounts a Kuklux on horseback, in the 
person of Kirk, with a rabble around him, with liberty to go . 
forth and -jommit lawdess acts upon the people in open day, 
under the authority, of the highest officer of , the state, and , 
supported aaad paid out of the treasury ci'the people who are 
suff] ring this oppression. These are the points of difference 
between the disease and the remedy — the offenders and those • 
sent in pursuit of' them.. The. punishment of crimes against - 
society is made ^.pretext lor the overthrow of constitutional 
liberty, and the destruction of. the freedom of elections. Such 
•stratagems are among the. old. devices of tyranny. . It is but a, 
reproduction of the invention of ;Pisistratis wdio procured a 
force to guard his person from (a feigned danger ot assassina- 
tion, but soon perverted it to make himself tyrant of Athens. . 

My 11 were arrested en a pietcndcd suspicion of their partici- . 


nrrtion in the murder of Outlaw whose names were upon lists, as it 
appears in evidence, furnished by the respondent, and were threa- 
tened with trial and execution by a military court appointed by his 
order, whom he is obliged to have known were above all sus- 
picion of any such crime: And if his honor Judge Brooks 
had not opportunely brought the federal power to >the relief of . 
the people, or if the August election had not gone against the 
governor and his partisans, there is no telling how far this course 
of madness and folly would have been. extended,. or who would 
have been secure in. liberty or in life.- A system of vicarious 
punishment seems to have been resolved upon, and some offer- 
ings were to be sacrificed for the crimes that had been commit- 
ted— it mattering nothing whether the victims were guilty or 

Mr. Chief Justice and Senators, I have- endeavored to expose 
the conduct of the respondent as being in palpable violation of 
the constitution and laws. I now proceed to show that his 
oppressions upon the people were effected by equally unlawful; 
means : that Kirk's arinv was an unlawful force, both in view 
of the constitution oi the United States, which inhibits* any 
state to " keep troops or ships of war in time of. peace," and of 
the constitution and laws of North Carolina. The only force 
permitted to be kept or in any way controlled by a state is a 
militia. The governor is, by the constitution, the commander- 
in-chief of the militia,, and of no otheivforoe:, lie may "call it 
out to execute the law, to suppress riots- on insurrection, and to 
repel invasion." The militia* is to consist of> " all able-bodied 
male citizens of the state.- of Xoi'th. .Carolina,, betweent the ages 
of twenty-one and fort/ years,,who are citizens of the 'United 

The general assembly has power: to provide for organising 
the militia;, and. an act authorizing the governor to-effeet an 
organization' was passed on the 14-th of Auignsty 13f>8; but 
we have no> information that the provisions of. the act have 
ever been carried out. The act of the 27th. of January, 1870, 
aonnnonlv called the Shofiner act, authorizes the governor to, 


call into active service the militia " for the purpose of sup- 
pressing insurrection," &c. These arc the only provisions we 
have in reference to the composition or the control of the 
militia. Now, do the troops of Kirk answer the description of 
militia of North Carolina ? His whole force appears by the 
muster rolls to have amounted to 670 men. 

1. Of these 399 were under twenty-one years of age, boys 
from 13 to 17, 18 and 19, who could not make a valid contract, 
and every one of whom might have been, at any time, relieved 
and discharged from service under habeas corpus if Kirk 
had not annulled and set aside the writ of habeas corpus for 
the time being. 

2. Sixty -four were over the age of forty years. 

3. Two hundred and over came from other states, nearly all 
these from East Tennessee, with sweepings from Virginia and 
South Carolina. 

4. All the field officers at least were East Tennesseeans. 

5. They were all reruited men, as we learn from the testi- 
mony of Colonel Clarke, signing similar articles to those pre- 
scribed for soldiers in the regular army of the United States, 
with a substitution of " North Carolina " for " United States." 

In the required ages, and citizenship, and mode of enlistment 
of the men, and the domicil of the officers they had no preten- 
sion to the character of militia of North Carolina. They were 
called " North Carolina state troops," their officers always 
signing their orders or communications with an appendix of 
" N. C. S. T.," until Kirk, being subdued into some regard for 
the law, by the action of Judge Brooks, signed his returns to 
the writs of habeas corpus at Salisbury as " colonel of detailed 
militia of North Carolina." 

It is to be distinctly observed also, that no commission has 
been produced to Kirk or any of his officers. Why ? eithor 
because they had none, and were therefore to be regarded out- 
laws, or what is more probable, because the documents would 
have shown that they were not commissioned in the militia, 
but in a regular army raised by the respondentin North Carolina 


in disregard and defiance both of the constitution of the state 
and of the national government. 

The levying of these troops was itself a great offence deserv- 
ing of impeachment. Regular armies have been the instruments 
of usurpurs for the establishment of tyranny in all time. Hence 
the interdict on standing armies in the declaration rights, and 
the provision for " a well regulated militia," a force to be made 
up of citizens of the neighborhood, county, or state, having inter- 
ests, feelings and sympathies, in common with people of whom 
they are required to be a part. When the adoption of the 
federal constitution was under consideration by the American 
people, the jealousy of standing armies was urged as a reason 
for not allowing to the president the command of the militia 
even when called into the service of the United States. In an 
article of the Federalist by Hamilton, a great soldier as well as 
statesman, in reply to this suggestion, he describes the true 
character of militia in these words : 

" AVhere, in the name of common sense, are our fears to end 
" if we cannot trust our sons, our brothers, our neighbors, our 
" fellow citizens ? What shadow of danger can there be found 
" in men who are daily mingling with the rest ol their coun- 
" trymen, and who participate with them in the same feelings, 
" sentiments, habits and interests ?" 

Sir, did Kirk and his command occupy any such relationship 
as that to us? Were they people of North Carolina, were 
they men that expected to face the people after this war was 
over, and this campaign ended, and meet that public opinion 
by which more or less every man is affected in this country ? 
Not they. They came here suddenly, and disappeared as 
suddenly. They had no interest in the state of North Caro- 
lina, and were no more to be considered as part of our militia 
than would be one of the regiments of federal troops that 
come here upon military service during the war, and returned 
again when the service was over. Besides, if they were s 
North Carolina militia, where are their commands now ? 
Militia ordered out for a particular service remain militia stil> r 


sand when the sevice is over they fall back into the ranks from 
which they went. But these were a band of foreign mercena- 
ries brought here without authority ot law, without any pre- 
tence to the character of militia, without sympathies or connec- 
tions with the people ot the state. The officering and 
organization of such « force was an insult to the entire militia 
establishment of the state, similar in its nature to that the 
respondent had. cast upon the judiciary department, when he 
assumed that it was incapable of its duties and took its functions 
upon himself in making arrests, holding courts and executing 
sentences by his military authority alone. It was a remark of 
Mr. Calhoun, who for a long time presided acceptably over 
the department of war, that an officer who would submit to be 
■overslaughed in the matter of promotion was unfit to serve 
under the flag of his country. That in a militia numbering 
not less than one hundred thousand men, no officers could be 
found in the state fit to command in any of the grades of field 
officers of this regiment, exhibits a depreciation of the officers 
by their commander-in-chief truly remarkable. 

I neglected in the proper place to mention that the governor's 
intention in regard to this declaration ot insurrection, and his 
subsequent oppressions of <the people, were shown by the ad- 
ditional fact that when he was surprised by a writ from the 
federal judge he undertook to escape obedience, not by fiat 
.refusal, in defiance of consequences, as was his course with the 
state judiciary, fbut by seeking the shield of protection from the 
president of the Ini ted States. When he corresponded with 
the chief justice of the state, he said that he declined to permit 
■the prisoners to be produced as commanded by the writ, but 
that in a short time he hoped he should restore the civil law in 
Alamance. JJe does not. say that he expects even when civil 
law is restored to product them before him, although he evi- 
dentlv designed that that should be understood. But when 
early in August, Judge Brooks issued his writ of KqheqA 
corjuix, we find that the governor forthwith addresses atelegram 
.to the president, and informs him that he has in custody 


'certain prisoners charged in substance with murder ; tliat th'e 
federal judge has no jurist ieiicrc ever murders in the state, 
sand that his design is tG resist, unless the federal troops shall 
come in aid of the'snal. The pj e&deat referred theeom- 
munication very properly to the attorney general. The at- 
torney, general -advises that the governor submit himself to the 
process issued by Judge Brooks. Forthwith the governor opens 
his correspondence with the chief justice again ; and then he 
discovers, tor the first time, that it had been his design to bring 
these men before the chief justice from the beginning, and that 
the moment had now arrived when it could be- done. What 
angel of peace had spread its vings over the iai.d and enabled 
the civil magistrates again to perform their functions, when ho 
had so recently suspended habeas rorjn/s, and driven it out of 
use in the state, he does not say. But we see when we comes 
>to look at the correspondence, what it was that moved him. 
lie says he is going to bring them before the chief 
justice now, as he had designed to do before. Until -them 
he iiad never said that he had such an intention. His 
'military court was the ordeal he had appointed for them. 
He had no purpose that they should go elsewhere, until 
•driven from his position by the firmness of the federal judge. 
Then, to break the humiliation of 1 is fall and cover his retreat, 
his private secretary is dispatched in his haste for the ■■chief 
justice to return to the seat of government end 'receive 
returns winch, but recently, the executive, with the high hand 
■of power, had refused to allow. The chief justice came, but 
the prisoners having all made application to Judge Brooks-. 
withdrew their petitions. It was then discovered that bench 
warrants were a process known to the law. Affidavits were 
made in a few cases, the process issued, citizens of Alamance 
and Caswell were arrested and the charges against them were 
examined without let or hindrance, as could have been done 
at any preceding time without the military or any demonstra- 
tion of war. -There was found to be no insurrection there : 


yet there was just as much then as when Kirk's army entered 
the borders of those counties. 

In looking back on those startling events, we have reason 
to be profoundly thankful that the people were not moved to 
resistance by all the persecutions to which they were subjected 
by the respondent. With the law on their side in all these 
collisions with Kirk and his men, so that if a citizen had been 
slain the crime would have been murder in them, while if one 
of them had fallen in the practice to their outrages, it would 
have been excusable self-defence, no one attempted to repel 
force by force, but every where there was submission, as if 
to lawful authority. And even trose subjected to bodily 
torture bore it with heroic fortitude and patience, without 
being moved from their integrity or swerving from truth. 

Their trust, next to that in an overruling Providence, was 
in the redress provided by the constitution of their country. 
That redress, senators, is in your hands. The same constitu- 
tion which guarantees freedom from arrest except in the 
mode appointed by law ; which declares the military subject 
to and to be governed by the civil power ; which assures the 
privilege of the writ of habeas corpus as a right of which the 
the government of the state, in any and all of its depart- 
ments, shall never divest a citizen ; provides that for any 
infraction of these great and essential rights by officers 
entrusted with the powers of government, the remedy by im- 
peachment is the mode of vindication. The house of 
representatives, by their board of managers and counsel 
have brought before you the high crimes and misdemeanors 
imputed to the respondent in his official capacity, and ask of 
you that judgment which should follow upon the proofs that 
have been made. They insist that he is guilty upon every one 
of the articles preferred ; that the defence attempted, by prov- 
ing that crimes had been committed in the counties he invaded, 
by persons unknown, in disguise and under concealment, afford 
no justification for his open and causeless arrest, imprisonment 
and mal-treatment of the innocent citizens who have made 


complaint, and of his wanton violation in their persons of 
almost every right secured by the constitution ; that he is to be 
held responsible for the tortures by hanging and other abuses 
practiced by his lieutenant colonel, Burgen ; the more especially 
since it appears that after these atrocities had all become pub- 
lic, and Burgen was held in prison to answer fur them civilly 
or criminally, the respondent appears as his apologist or advo- 
cate in writing to the circuit judge of the United States to 
procure his liberation ; that he is guilty of the arrest and cruel 
imprisonment in a felon's cell of Josiah Turner; of drawing 

large sums of money from the public treasury for the support 
of the troops, the instruments of his cruelties and usurpations, 

raised and set on foot without authority of law ; and of defying 

and defeating the process of a court of justice issued to restrain 

the disbursement of public moneys not authorized by law. 

Judex damnatur quum necens absolvitur — " the Judge is 
condemned when the guilty escape punishment." 

Senators, the last bulwark against oppression by public 
agents or abuse of official authority is found in the constitu- 
tion of this high court of impeachment. While no per- 
sonal or political prejudice should be for a moment permitted 
to influence your determination against the respondent, I trust 
that no personal appeal, such as that made by the learned gen- 
man, [Mr. Conigland,] who opened the defence, nor any con- 
sideration of the consequences that may result from a just dis- 
charge of your duty will weigh with you for his acquittal. A 
fair and impartial but at the same time a fearless judgment, is 
alike due to yourselves and your country. 



Senate Ciiambek, ^Vlarch 16, 1871. 

The COURT met at eleven o'clock, A. M., pursuant to ad- 
journment, Hon. Ti. M. Pearson, Chief Justice' of the Supreme 
Court in the chair. 

The proceedings were opened by proclamation made in due 
form by the doorkeeper. 

The CLERK proceeded to call the roll ot senators when the 

Lowing gentlemen were found to lie present : 

Messrs. Adams, Albright, Barnett, Battle, Bellamy, Brogden, 
Brown, Cook, Council, Cowles, Crowell, Dargan, Edwards. 
Eppes, Flemniing, Gilmer, Giaham of Alamance, Graham of 
'"Orange, Hawkins, Uyman, Jones, King, Latham, Ledbetter, 
Lehman, Linney, Love, Mauney, MeClammy, McCotter, Me*- 
.rimon, Moore, Morehead, Murphy, Norment, Olds, Price, Rob- 
bins ot Davidson, Bobbins of Rowan, Skinner, Speed, Troy, 
"Waddell, Warren, AVhiteside and Worth— 46. 

Senator )fc( 'LAMMY moved that the Heading of the four- 
nal of proceedings of yesterday be dispensed with. 

The CHIEF JUSTICE put the question on the motion of 

nator McClammy, and it was decided in the affirmative. 

Senator NORMENT. Mr. Chief Justice, I observe on look- 
ing over the published proceedings of the afternoon session of 
" the thirty-sixth day I am not recorded as present. I was pres- 
ent at the session, and I presume the omission to record me 
was a clerical error. I ask that the fact of my presence then 
may be noted in the proceedings of to-day. 

Mr. Manager SPARROW. Mr. Chief Justice, there is a 

■.matter in reterence to some witnesses who were subpoenaed to 

-attend on this trial, to which I have been requested to call ithc 

attention ot the court. Those witnesses who were suppcenaed 

on behalf of the respondent were not sworn, and licnce are not 

•Mtitled .to prove their .attendance and s;et their pay. M ilhe* 


sare to be paid, it will be necessary for the court to make some 
•order in reference to them. I call the matter to the attention 
• of the court, as it is not right that witnesses should be sum- 
moned and kept here for weeks, and then not be entitled to 
any compensation. I understand that all three are respectable 
colored men who can ill afford to lose their time and be on 
expense beside in attending on the trial. 

Mr. BADGER. Mr. Chief Justice, the fact that the wit- 
nesses referred to by the manager were not called and sworn 
was an oversight on our part. Their names were not on the 
list that was handed to us, or they would have been sworn. 
The reason of the names not having been furnished us is this : 
The chief justice will recollect that in the attempt to trace the 
taking of certain colored men out of the jail of Orair.-e county 
to men coming from Alamance, we failed because we were 
unable to show that certain roads in reference to which we 
proved that horses tracks had been followed connected with 
each other. These witnesses were called to prove the facts 
in reference to the taking of those men from the jail and their 
evidence became inadmissible in the absence of the prelimi- 
nary proof. 

Senator JONES. It seems -to me, Mr. Chief Justice, that 
this is a matter to be disposed of not by the court but by the 
general assembly. If these witnesses are among those for 
whose payment provision Avas made by the general assembly, 
it is the duty of the clerk to certifv them as such. But I do 
not understand that they are. If I am rightly informed in 
respect to that, to provide for their payment will require the 
joint action of the senate and house. 

Senator MOORE. The witnesses might be sworn and al- 
lowed to stand aside and then they can prove their attendance 
and get their pay. I make that motion. 

Senator GRAHAM, of Orange. I am informed that all of 
the witnesses referred to are not here. I shall oppose payirg 
them unless certain white witnesses who were subpoenaed and 
not. sworn shall also be provided for. 


Mr. Manager SPARROW. I understand that this is an 
urgent matter with these men. They are here without money 
to pay their bills or to get away with. 

The Chief Justice put the question on the motion ot 
Senator Moore, to allow the witnesses referred to be sworn, and 
it was decided in the affirmative. 

Senator JONES called for a division of the senate on the 

Senator McCLAMMY. I understand that one of the wit- 
nesses has left the city. 

Mr. GRAHAM. There were three who were in the city 
this morning. They live in my neighborhood and they ap- 
plied to me to know what to do. I told them that the matter 
would be brought to the attention of the court, and I pre- 
sumed there would be no difficulty in having their compen- 
sation provided for. 

The Chief Justice announced the pending question to be 
the motion of Senator Moore to allow the witnesses to be sworn. 

Senator WORTH. I desire to know, before I vote, whether 
the motion of the senator from Craven [Mr. Moore] includes 
all of the witnesses who have not been sworn, some twenty I 
understand, or those referred to by the manager ? I think 
it is important that we should cover the whole ground in the 
action which we take. 

Senator GRAHAM, of Orange. I offer this resolution as a 
substitute for the motion offered by the gentleman from 
Craven : 

Resolved, That all witnesses who have been summoned on 
either side in the impeachment trial be allowed to prove their 
attendance and be paid out of the treasury. 

The ayes and noes were called and a sufficient number 
seconding the call they were ordered. 

The Clerk proceeded to call the roll on the adoption of 
the resolution offered by Senator Graham, of Orange, as a sub- 
stitute for the motion of Senator Moore, and it was decided in 
the negative by the following vote : 


Those who voted in the affirmative are : 

Messrs. Harriett, Bellamy, Cook, Cowles, Currie, Dargan, 
Eppes, Flemming, Gilmer, Graham of Alamance, Graham of 
Orange, Hawkins, Hyman, King, Latham, Lehman, McCotter, 
Moore, Murphy, Olds, Price and Speed — 22. 

Those who voted in the negative are : 

Messrs. Adams, Albright, Battle, Brogden, Brown, Couucil, 
Crowell, Edwards, Jones, Ledbetter, Linney, Love, Mauney, 
McClammy, Merrimon, Morehead, Norment, Bobbins of 
Davidson, Bobbins of Rowan, Skinner, Waddell, Warren, 
Whiteside and Worth— 24. 

Senator BBOGDENmoved to reconsider the vote just taken. 

Senator LOYE moved that the motion to reconsider be 
laid on the table. 

The CHIEF JUSTICE put the question on the motion of 
Senator Love, and it was decided in the affirmative. 

The question then recurred on the motion of Senator 
Moore to permit the three witnesses to be sworn. 

Senator BOBBINS, of Bowan, called for the ayes and noes. 

A sufficient number seconding the call, the ayes and noes 
were ordered. 

The CLERK proceeded to call the roll of senators on the 
adoption of the motion of Senator Moore, and it was decided 
in the negative by the following vote : 

Those who voted in the affirmative are : 

Messrs. Bellamy, Brown, Cook, Cowles, Dargan, Eppes, 
Gilmer, Hawkins, Hyman, King, Latham, Moore, Murphy, 
Olds, Price, Skinner, Speed and Warren — 18. 

Those who voted in the negative are : 

Messrs. Adams, Albiight, Barnett, Battle, Brogden, Coun- 
cil, Crowell, Currie, Edwards, Flemming, Graham of Ala- 
mance, Graham of Orange, Jones, Ledbetter, Lehman, Linney, 
Love, Mauney, McClammy, McCotter, Merrimon, Morehead, 
Norment, Robbins of Davidson, Bobbins of Bowan, Waddell, 
Whiteside and Worth— 28. 


The CHIEF JUSTICE. The court' is ready to proceed' 
with the hearing. 

Mr. HOYDEN. Mr. Chief Justice and senators, I regret to 
state that I am extremely fcnwell, so much so that I do not 
think it will be possible for me to proceed' with my argument 
to-day. It is the first time in forty six years that I ever found 
myself ill during the trial off a cause. At this moment I am 
suffering from high fever, and I would he very glad if I could 
be indulged by an adjournment of the court until to-morrow 

Mr. (tILVIIAM. By all means, sir, so far as the managers ■ 
are concerned. 

On morion of Mr. Graham, of Orange, the court adjourne ••■ 
:o meet to-morrow at eleven o'clock, a. m. 



Senate Ciiambek, March IT, 1871. 

'She CObRT met at eleven o'clock, pursuant to adjournment, 
Hon. It. Mi Pearson, Chief Justice of the Supreme Court, in 
the chair. 

The proceedings opened by proclamation made in due form 
by the doorkeeper. 

The CLERK proceeded to call* the roll of senators, when 
the following gentlemen were found to be present : 

Messrs. Adams, Albright, Alleei, Bamett, Battle, Bellamy. 
Brogden, Brown, Cook, Council, Cowles, Crowell, Currie, Dar- 
gan, Edwards, Eppes, Fleniming, Gilmer, Graham of Ala- 
mance, Graham of Orange, Hawkins, Hyman, Jones, King, 
Latham, Ledbetter, Linney, Love, Mauney, McClammy, Mc- 
Cotter, Merrimon, Moore, Morehead, Murphy, JSTorment, Olds, 
Price, Bobbins of Davidson, Bobbins of Rowan, Skinner, 
Speed, Troy, Waddell, Warren, Whiteside and "Worth — IT. 

Senator JOXES moved to dispense with the reading of the 
journal of proceedings of yesterday. 

The CHIEF JUSTICE put the cpnestion on the motion cf " 
senator Jones, and it was decided in the affirmative. 

Mr. BOYDE^N", on behalf of the respondent addressed the 
court. He said : . 

Mr. Chief Justice aku Senators: 

I desire to tender my. sincere thanks to the members of this 
court fondelaying the trial by the unanimous vote of its mem 
bers, in deference to my illness yesterday. I am still feeble,*, 
which I regret more on account of rm client than from any 
other consideration ; but I trust I will's be able by deliberation i 
to fully present my views to the court* . 

I have a very difficult task to perform,. First, I have to jus- 
tify and to defend military law, in i doing which every man i 
speaks to a disadvantage, , It is very^pleasant lo discourse be. » 


fore such an intelligent body as this, and before the country 
on the great privileges secured to the citizens of the United 
States and of the state of North Carolina, by those noble prin- 
ciples contained in the federal constitution, and in the bill of 
rights of the constitution of North Carolina, and to uphold the 
importance of their preservation to the community. But I 
have a task to perform directly to the contrary of that. I hope 
to do it with candor, and to satisfy this court that the views 
which I shall present aie impregnable. 

Then there is another part of my duty which has reference 
to myself and my own feelings. I came to North Carolina 
nearly half a century ago, without friends or money. I was 
kindly taken by the hand by the citizens of the good 
old state and during my whole experience here I have been 
treated with kindness and consideration, perhaps more than I 
deserved ; and for this I trust in God I shall ever feel 
grateful. I have never regretted the selection of North Car- 
olina as my home. The people of the state I have found 
much to my idea of a great, noble and generous people ; but 
though I selected North Carolina for my home, and have en- 
tertained for her people this sentiment of love and gratitude, I 
have not forgotten the land of my nativity, and have never failed 
to entertain that same deep attachment that every man may 
be supposed to feel for the home of his childhood and youth. 
With a flood of fond memories of the people of North Carolina, 
and with sentiments of affection binding me still to them, it 
becomes my duty in my I elation as counsel to the respondent to 
hold up to the court and to expose to the world, one of the most 
wicked and infamous organizations against the peace and good 
order of society within our state that ever existed in any coun- 
try ; that I have to expose the existence and character of such 
an organization in our midst, to public scorn and indignation, 
may well be supposed to be a disagreeable task, but I shall not 
shrink from any duty. I am a very plain and blunt man, 
and I often speak in a way, I know, which seems harsh and 
discourteous, but I wish to say to the court, many of whose 


members I have known long and well, and for whom I have a 
high regard for their intelligence, honesty and uprightn 
that if I shall say anything in the heat of argument derogatory 
to any member of the court or to the learned counsel for the 
managers, it will be unintentional. Nothing could be more 
agreeable to me, as one ot the counsel for the respondent, than 
to have opposed to me such learned and courteous gentlemen 
as have been associated with the learned managers in the prose- 
cution of the trial. 

The first topic, Mr. Chief Justice and Senators, which I de- 
sire to discuss, is the power not only in England at this day, 
but in the United States and in each of the several states under 
certain circumstances, to declare martial law, and after dis- 
cussing that I shall then attempt to satisfy the court as to what 
is the effect upon any locality and the citizens thereof after 
martial law has been declared. I maintain and I expect to 
establish it by the highest authority, that this power of de- 
claring martial law necessarily exists in every community, and 
that in no country is it more important than in the United 
States and in the several states of this great republic. 

It is said, Mr. Chief Justice and Senators, as I understand 
the argument of the gentleman who last addressed the court 
[Mr. Graham] that the power to declare martial law does 
not exist this day in England ; that it does not exist now 
under the government of the United States, and that it 
does not exist in the state of Xorth Carolina. I think that 
in this view the learned gentleman is laboring under . great 
mistake, and this I trust I shall be able to show by authority 
to the satisfaction of the court. 

I admit that in ordinary times the declaration of martial law 
should not be resorted to, and when resorted to, it has always 
'been and should be in times of overruling and paramount ne- 
cessity. It is said that within our state there was no ms 
tion. But the case for the respondent, sir. it will be rem . 
bered, does not stand alone in the idea of insurrection. Itis 
said that nothing amounts to an insurrection but that of 


open, armed force attempting to resist the laws of the country. 
That insurrections usually are of that character no one will 
deny ; but no authority has been produced, and no authority, 
in my judgment, can be produced to show —when numerous 
organizations have been formed amounting in the aggregate to 
thousands of lawless men, banded together to take the law into 
their own hands and to punish any man, white or black, who 
has fallen under their displeasure by reason of his political 
course or moral character, and when this very same organization 
proclaim themselves the authors of scores of outrages, whip- 
pings, seourgings and murders, within the limits ot a county, in 
visiting vengence upon men and women, and when they have 
gone to the length of establishing such a condition of terrorism 
throughout the county, that no poor colored or even white 
man's house is safe from invasion at the dead hour of the night. 
I say that when such a condition of society is shown, no au- 
thority can be found which will say — that military power may 
not be invoked to insure the lives and property of the people. 

Look at the organization at Graham, in the presence of one 
of its former chiefs and six or eight others, assembled to 
carry out one of its decrees, and when this very chief testified 
here that he was afraid to interfere, to prevent a scene of out- 
rage and murder ! Sir, what must have been the fear of other 
citizens of the county, and especially of republicans, when 
they saw an array like this in that town ? What must have 
a their fear and dread when a former chief of the whole 
organization in the county of Alamance dared not lift up his 
voice to ] revent these assassins and cut throats from the 
perpetration of the murder of poor Outlaw? 

Again, at Company Shops, a respectable white woman leaves 
her home at night, in the streets, screaming for help, her face 
covered with blood ; she is seen by numerous citizens who are 
aroused from their slumbers by her cries ol murder. She 
tells them of the seizure of her husband by these cowardly 
wretches in disguise, and yet not a human being dares to fol- 
low or attempt to find out the scoundrels engaged in this in- 


famous outrage upon her husband— a crippled white man 
who had been guilty of what ? Is there any senator that has 
any doubt for what ? He had invited a poor colored boy to 
enter the house of God to hear its pastor call all men to cease 
their ways of wickedness and to learn and pursue the path of 
the righteous, that they might be prepared to appear at the 
alter of that God before whom we are all to account and who 
has no respect for color or position. That was one offence of 
Corliss; but he was guilty of another which brought down upon 
him the decree of this mysterious court of assassins and man- 
whippcrs. Corliss, in spite of the prejudices existing on the 
subject, undertook to teach colored children to read and write 
and to instruct them in those principles of religion and of 
government which would tend to make them better and more 
useful citizens. That was another offence which called for 
the interposition of this self-elected and self-constituted court, 
" wise above what is written," and so indifferent to the praise 
of the world as to modestly seek to be unknown in the annals 


of judicial decision, though their adjudications were novel 
and their acts in executing their own decrees manly and 
brave ! 

Sir, look back to before the days of the rebellion. "Was it 
ever heard that a slave might not enter the church of God 
with his master or with any other man, and there to bow 
together before God and worship him ? And does not the fact 
of Corliss being whipped for inviting a colored boy into a 
church denote a sad change in the state of public feeling among 
portions of the white community against colored men and 
against northern men ? I ask senators to dwell with great 
deliberation before they make up their verdict upon this view 
of the case which I have presented. 

1 shall have occasion hereafter to recur to this subject, and 
to facts which are somewhat similar ; but before I do it, I 
desire, as well as I can, in my teeble state of health, to establish 
the proposition with which I started, that in England, the Tin- 
ted States, and in all the states of the Union, there is the power 


to declare martial law in those cases where extreme necessity 
may require it, and that when so declared no civil process can 
run into such a locality. 

In the first place, Mr. Chief Justice and Senators, I shall 
recur to the case of ex/parte Milligan, reported in -i Wallace, 
which has been relied upon by the managers, as I understand 
it, to establish an entirely different doctrine. I desire, lest all 
the senators may not have read that case, to read citations from 
it. What was that case? During the rebellion, while the war 
was still raging, there was a power vested in the president to 
arrest and to detain military prisoners under an act of congress. 
The authority was to arrest and detain. It a prisoner was 
arrested twenty days before the sitting of the federal court, 
in the district where the arrest was made, he was to be de- 
tained until that federal court had met and adjourned, and if 
the court took no steps whatever to prosecute these military 
prisoners, what was to be done '. The law expressly provides 
that in such a case the prisoner had a right, under that very act 
of congress, to petition a judge of the federal court to take him 
out of military custody and to discharge him altogether or bind 
him over to the federal court, as the circumstances of his case 
might require. When the court met Milligan had been de- 
tained some sixty days instead of twenty. The court took no 
notice of his case, and although it was made the duty of the 
military officers who held any such military prisoner to report 
the case to the court, solicitor or district attorney, no such 
report was made whatever. No notice was taken of Milligan's 
case in any shape, and of course under the act of congress he 
had a right to petition a federal judge or the court for his dis- 
charge. But the military, notwithstanding this plain provision 
of the law, expressly provided for that very case, Avent on and 
appointed a commission to try Milligan, and tint court con- 
demned him to suffer death — exactly what they had no right to 
do. The law had provided expressly that a prisoner thus ar- 
rested, when court met, was to be taken out of the hands of the 
military and lie turned over to the civil tribunals; and if the 


federal court took no action in his case, he had the right to make 
his application for a discharge as I have stated. 

Now, Mr. Chief Justice and Senators, congress had not de- 
clared Indiana in a state ot insurrection. In the locality where 
Milligan had been apprehended and detained no proclamation 
of insurrection had been made. The courts were open ready 
to try all militaay prisoners that had been apprehended twenty 
days before they met ; and the court not having tried his case, 
not taken any notice of it, it was Milligan's right to file a peti- 
tion to be taken out of the custody of the military and be 
discharged or bound over as the case might require. That is 
all there is in that case, and it went to the supreme court upon 
these points and upon these points alone; and let me say that 
every member of the court concurred in every fact and every 
position of law entitling Milligan to his discharge. 

There was no division of sentiment in the court as to any 
fact or point ot law necessary to the decision of the case. 
What took place ? Why, after deciding the cause and all con- 
curring, Mr. Justice Davis, and four of his associates who con- 
curred with him, thought proper to go into a long and learned 
discussion touching the provisions in the constitution of the 
United States for the protection of the lives, liberties and pro- 
perty of its citizens — those provisions forbidding arrests without 
warran ts, and among them the writ of habeas corpus — which has 
come down to us from our ancestors and has been maintained 
in the United States and every state of the Union. But this 
learned and able discussion was entirely outside of the case be- 
fore the court — it was mere obiter dicta ; and, sir, there is 
nothing better settled in North Carolina, than that, no matter 
how much is said by the court touching points which have 
nothing to do with the discussion of the cause, it is not author- 
ity. ft decides nothing. 

Nevertheless, Mr. Chief Justice and Senators, the opinion of 
Mr. Justice Davis and those who concurred, is the opinion of 
learned, upright and intelligent jurists, and is entitled to con- 
sideration before this learned court; but not being decisions, 


but mere obiter dicta, sucli opinions arc not "binding in any 
eourt, and should be no authority, except so far as by reason 
and agreement they appeal to the intelligent understanding of 

But, sir, what else does this case show ? It shows that that 
learned jurist, Chief Justice Chase, and three of his learned 
associates, to prevent any misapprehension as to their views of 
the law, thought proper to deliver their sentiments touching 
these very points, out sideof the case. And, sir, we say on be- 
half of the respondent that the judges who joined in the opinion 
of the chief justice, are as learned jurists, as honest, as intelli- 
gent as those who joined in the opinion delivered by Mr. Jus- 
tice Davis, and therefore, that their opinions are entitled to 
the same weight before this court on matters outside of the 
points really adjudicated, as the opinion of Mr. Justice Davis 
and those who concurred. And, sir, I expect to satisfy this 
court, beyond all question, from the very highest authority, that 
the opinion which they delivered in that case is the settled law 
of the United States. If the majority of the court, in their 
opinion, meant to declare that in times of great emergency 
congress could not authorize the president to declare a locality 
in a state of insurrection, and to authorize military commis- 
sions to try and punish any insurgents, which I think a delib- 
erate and careful reading of their opinion will satisfy every 
senator that the court did not so intend to decide, but if they 
did, I say they utterly mistook the law. 

i desire now to call to the very deliberate attention of this 
learned court, in which I see many senators capable of occupy- 
ing with honor to themselves and to their country the very 
highest judicial position in the land, to the case of Milligan, 
and to what the learned chief justice said in the opinion which 
he delivered. I begin at the last paragraph of page 140 of ± 
Wallace Reports, and including the opinion of the chief justice 
from that point to the close : 

" We cannot doubt that, in such a time of public danger, 
"•congress had power, under the constitution, to provide for the 


"organization of a military commission, and for trial by that 
" commission of persons engaged in this conspiracy. The fact 
" that the federal courts were open was regarded by congress 
" as a sufficient reason for not exercising the power • but that 
"fact could not deprive congress of the right to exercise it. 
" Those courts might l>e open" 

And I want senators to notiee this particularly. I shall have 
occasion to comment upon it at great length hereafter. 

" Those courts might be open and unrestricted in the execu- 
" tion of their functions, and yet wholly incompetent to avert 
" threatened danger, or to punish, with adequate promptitude 
and certainty, the guilty conspirators."' 

Senators, go with me to the county of Alamance ; go to the 
houses of the poor colored men at midnight, where they are 
resting with their wives and little ones around them ; here 
they are seized by this band of armed assassins who enter their 
peaceful dwellings by scores, drag them to the woods, tie them 
to trees, strip their bodies and whip them as they would hesi- 
tate to whip a brute. Yes, in some cases they have not been 
satisfied with whipping, but have gone on to murder, and this 
thing has been persisted in for two, three or four years. And. 
sir, what do the records of the couits of Alamance and Caswell 
show ? Not a solitary violation of law by this band of assassins 
has ever been punished. I ask senators if the opinion of Chief 
Justice Chase is not applicable here '. Does the fact of having 
the courts open, and in the exercise of their usual functions, 
show that these tribunals answer their purpose \ I appeal to 
every senator if the proof of the outrages committed by this 
cowardly association is not sufficient to satisfy every one that, 
so far as these organizations are concerned, the arm of the 
civil power had become utterly powerless, and that there was no 
means of punishing any one of these vile conspirators? Are 
senators prepared to say that these things were to go forward ; 
that these vile deeds were to be perpetrated night after night 
by these cowardly assassins with no power to interpose to pro- 
tect the unoffending citizens ? What glorious and noble deeds I 


Seventy-five or a hundred men of the intelligent Caucasian 
race go forth to the hunihle dwellings of a poor colored man 
and drag him from his house. Brave men they he, four 
score armed with pistols and guns, go forth to conquer one unof- 
fending negro ! They dare even to make a night attack. They 
rm him in his castle ; he is taken by surprise. His aged mother 
:»nly being near to come to his aid, with all her might she tries 
to heat hack the villains and she is- knocked down and stamped 
upon. Her son is taken from his little children, carried off to a 
tree in full view of* the court house, that they might show their 
itempt for the civil authority, and there he is hung by the 
k until he is dead ! dead ! dead ! Brave men indeed, they 
and they should be immortalized in history ! Yes, sir, they 
hanged him before the court house door to show their con- 
tempt for all the civil authority of the country. Though they 
did conceal their persons, they had no intention to conceal 
their iniquities. They desired it to he proclaimed on the house 
tops and in the streets that these cowardly deeds were done by 
. i of the brave and noble Kuklux Klan ! 
Begging pardon for this digression, I will go on with the bai- 
lee of this opinion of Chief Justice Chase. 
•• ju Indiana, the judge- and officers of the court were loyal 
" to the government. But it might have been otherwise. In 
•• times of rebellion and civil war, it may often happen, indeed. 
•■ that judges and marshals will be in active sympathy with the 
•' rebels, and courts their most efficient allies." 

Let me stop here a moment, senators, and ask if you have a 
recollection of a man by the name of Murray, who is sheriff of 
ace, and who says he was chief of one of these camps of 
conspirators? Yes, sir, and the night before Outlaw was hung 
at sunset that perjured wretch was in Graham. For what "( I 
leave it for senators to judge. And, sir, there has been proven 
here another fact, called out by the prosecution, that he even. 
bad a deputy that belonged to this organization of chivalric and 
brave conspirators. And two or three magistrates in the 
'vounty were in active fellowship with this organization of cut- 


-•_>- i 

throats and assassins. Well might Chief Justice Chase remark 
that judges and marshals might be in active sympathy. But 
let me read further : 

" We have confined ourselves to the question of power. It 
"was for congress to determine the question of expediency. 
" And congress did determine it. That body did not see lit 
i; to authorize trials by military commission in Indiana, but 
" by the strongest implications prohibited them. With that 
"prohibition we are satisfied, and should have remained silent 
" if the answers to the questions certified had been put on 
;£ that ground, without denial of the existence of a power 
'• which we believe to be constitutional and important to the 
" public safety, — a denial which, as we have already suggest- 
" ed, seems to draw in question the power of congress to pro- 
'' tcct from prosecution the members of military commissions 
"who acted in obedience to their supreme officers, and whose 
" acting, whether warranted by law or not, was approved by 
" that upright and patriotic president under whose adminis- 
•• tration the republic was rescued from threatened destruc- 

•' We have thus far said little of martial law, nor do we pro- 
"pDse to say much. What we have already said sufficiently 
'• indicates our opinion, that there is no law for the govern- 
" ment of the citizens, the armies, or the navy of the Umtcd 
" States, within American jurisdiction, which is not contained 
''in or derived from the constitution. And wherever our 
" army or navy may go beyond our territorial limits, neither 
" can e-o beyond the authority of tne president or the legisla- 
t; tion of congress.'" 

Lest T should forget it, I desire here, Mr. Chief Justice, to 
make a few remarks upon what J regard as a grand mistake 
which seems to prevail among some, touching a locality 
declared in a state of insurrection, and what is called the sus- 
pension of the writ of habeas corpus. I fully concur with the 
doctrine laid down by the learned gentleman, [Mr. Graham,] 
who addressed us the day before yesterday — that the suspension 


of the writ of habeas corpus does not authorize the arrest of 
any man without a warrant, sued out under oath. There never 
was a greater mistake. And permit me to say that the respon- 
dent doubtless fell into this error. It would seem from the 
letters and telegrams that have been exhibited here that such 
was the fact, and I am not surprised that he should have so 
misunderstood the law, as to suppose that although he had 
declared marshal law in the counties of Alamance and Caswell, 
unless the writ of habeas corpus was suspended, these men might 
be taken out of custody of the military by the judicial power of the 
state, and handed over to the judicial tribunal for trial. There 
never was a greater mistake than that. The declaration of 
martial law, Mr. Chief Justice and Senators, places at once every 
citizen, high or low, rich or poor, peaceable or belligerent — every 
member of society, under the military power; and the judicial 
power of the state has no sort of authority in such locality and 
neither the cliiet justice nor any other judge has any authority to 
issue a precept to run into any locality declared in a state of 
insurrection. And, notwithstanding all that has been said in 
North Carolina against the chief justice in not going further, 
it will turn out in this investigation that he went beyond his 
authority; and I am happy to state that upon this subject the 
opening argument of the learned and distinguished manager 
| Mr. Sparrow] admits, in so many words, that a writ of hah as 
corpus do ss not run, and no civil process can run into a locality 
declared in a state of insurrection. 

I admit the opening speech of the distinguished gentleman 
on the part of the managers is an able and learned one. But, 
3ir, he was forced after having looked into the authorities to 
admit what is clearly established by all the authorities, that no 
civil I runs into a locality declared in a state of insur- 

rection. He says: 

" Martial law suspends .-.11 civil authority, and therefore the 
" writ cannot run." 

I am happy, Mr. Chief Justice, that upon this great question 
jji the cause we are not at issue. We agree on both sides. 


There is no getting out of that — that if martial law is declared 
it suspends all civil authority. I trust, senators now see that 
all this talk about the writ of habeas corpus and about arresting 
men in the counties of Alamance and Caswell without legal 
warrant, falls at once to the ground, provided martial law was 

But, gentlemen, do they try to get over it anyhow? They 
say that the governor had no fight to make such a proclama- 
tion — that there was no insurrection. "We are not now upon 
the question of the right to make the proclamation, but we 
shall be after a while. We arc now upon the question of fact — 
was an insurrection declared \ The governor did declare the 
counties of Alamance and Caswell in a state of insurrection, 
and what does that mean ? Why, it has been greatly misunder- 
stood 1 >y the people, and I fear by some members of the senate also. 
And, Mr. Chief Justice, I am free to admit here for myself, that 
until the investigation in this cause, I have been laboring under 
the same misapprehension. I shall, before I close, read ample 
and abundant authority to show the correctness of what the 
learned manager admitted in his argument. I shall be able 
to show that the declaration of insurrection not only suspends 
all ordinary law, but it suspends all those provisions in our 
constitution and our bill of rights for the protection of the 
lives, the liberties and the property of the citizen. Yes, sir, 
the declaration of martial law in any locality overrides all ordi- 
nary law, and the provisions in the constitution ; and I wonder 
lmt a little how it could be supposed that those clauses in our 
bill of rights which declare that no man shall be apprehended 
except by warrant under oath, and that no man shall be de- 
prived of his life, liberty, or any of his rights, unless by the 
law of the land, could be suspended by a declaration of insur- 
rection made by the governor, and that a person might be 
arrested contrary to those provisions, and yet the respondent be 
bound to obey a writ of habeas corjyus issued into such locality. 
Xo, sir, the very act of declaring a locality in insurrection sus- 
pends all civil jurisdiction. The courts have no power in any 


shape to meddle with any man, or to issue any process into the 
locality declared by the proper authority in a state of insurrec- 
tion ; and, sir, what is more than that, it is clearly laid down in 
the books that when this declaration is made by the proper 
authority every department of the government is bound there- 
by, and every citizen is bound to take notice ot it and conduct 
himselt accordingly. 

And that is not all, sir. When this proclamation of a state 
ot insurrection is once made by the proper authority, it is clearly 
settled in the hooks that this identical state of insurrection con- 
tinues until this same proper authority, to.wit, the executive 
or legislative department of the government, has declared that 
there is an end of this insurrection. That is the law that I ex- 
pect to establish. 

And here I will take this occasion to reply to an authority — ■ 
a Pennsylvania case reported in the American Law Register, 
and read by the gentleman who last addressed the court. I 
have not the case before me, but it is well settled, as many sen- 
ators will recollect, that when a state ot warduring the re- 
bellion — was declared — it continued until the proper authority, 
the executive or the congress ot the United States, the political 
part, of the government, declared it had ceased. Yes, sir, this 
judge in Pennsylvania had no authority to examine into the 
condition of the country, and to say whether the war was at an 
end or not. in law every court in the United States, state or 
federal, was hound to regard the state of war as existing, 
although there might not have been a man in arms against it, 
until the president or the congress of the United States declared 
ii at au end. I am glad that upon this subject 1 am addressing 
lawyc i*s quite as learned as the judge in Pennsylvania, and just 
as competent to pronounce the law as he was, and when they 
know that that point is perfectly settled, I have a right to ex- 
pect, and do expect they will be governed by the authorities. 

I read further from the opinion of the chief justice in the 
ease <>:' Milligan : 

"There are under the constitution three kinds of military 



"jurisdiction, one to be exercised both in peace and war, 
"another to be exercised in time of foreign war without the 
"boundaries of the United States, or in time of rebellion and 
" civil war within the states or districts occupied by rebels 
" treated as belligerents, and a third to bo exercised in time of 
"invasion or insurrection within the limits of the United 
" States, or during a rebellion within the limits of states 
" maintaining adhesion to the national government, when the 
"public danger requires its exercise. The first of these m; y 
" be called jurisdiction under military law, and is found in the 
'• acts of congress prescribing rules and articles of war, or 
" otherwise providing for the government of the national 
" forces ; the second maybe distinguished as military govern- 
" rnent superseding as far as may be deemed expedient the 
" local law, and exercised by the military commander under 
" the direction of the president, with the express or implied 
' sanction ol congress. While the third may be denominated 
" martial law proper, and is called into action by congress or 
" temporarily, when the action of congress cannot be invited, 
" and in the case [of justifying or excusing peril by the presi- 
" dent in times of insurrection or of civil or foreign war within 
" the district or locality where ordinary law no longer 
" adequately secures the public safety and private right." 

This is the law which we say existed in Alamance and 
Caswell at the time of the arrest of all these prisoners ; and 
we say here most emphatically, and I think there is not a 
senator within the sound of my voice but what must be fully 
and thoroughly satisiied, that the " ordinary law was no 
longer adequate to secure the public safety or private right 
in the county of Alamance or Caswell" — I say most emphati- 
cally, in my judgment, every senator must acknowledge that 
was the condition of things in both those counties. 

"We think that the power of congress, in such times and in 
" such localities, to authorize trials for crimes against the 
" security and safety of the national forces, may be derived 
"from its constitutional authority to raise and support armies 


" and to declare war, if not from its constitutional authority 
"to provide for governing the national forces."' 

"We have no apprehension that this power, under our 
" American system of government, in which all official authority 
" is derived from the people, and exercised under the direct 
l> responsibility to the people, is more likely to he abused than 
"the power to regulate commerce, or the power to borrow 
" money, and we are unwilling to give our assent by silence to 
" expressions of opinion which seem to us calculated, though 
"not intended, to cripple the constitutional powers of the gov- 
v - eminent, and to augment the public dangers in times of inva- 
" sion and rebellion." 

I hope all that I have said in reference to the Milligan case 
will be perfectly understood. I respect and I fully concur in 
the authority of the case, so far as it is an authority, and so far 
■!.- it ton. bos any point in that case necessary to a final adjudi- 
cation of the question involved. But the opinion of the 
learned majority touching points not necessarily involved in a 
decision of the case, is not an authority in law, though it may 
be entitled before this learned assembly to much weight on 
account of the learning and talents of those exalted jurists who 
concurred in this opinion outside of the decision in the case. 
But I do think, and I expect to establish by high authority, 
that they were certainly in error it they intended to decide 
whathas been urged by the counsel of the managers, which I 
certainly do not admit, and 1 expect to satisfy every man that 
the opinion of the minority on the question not necessarily 
involved in the decision of the case, is the law of the United 
States at this day. 

I will now proceed to the- other authority to establish my 
position, and will read from lb' shop's Criminal Law, volume 1, 
chapter 4, sections 52 to 64. 1 have had occasion heretofore 
to bring that authority before the court in an argument that 
too!< place at an early stage of this trial ; as I remarked it is 
a very pleasant position to be in to discuss those high princi- 
ples of civil liberty, treated at length by the learned gentle- 


man tlio day before yesterday, and a most disagreeable task to 
uphold military power. And while men who dare to under- 
take it are subjected to disparaging views, I will read what 
this authority says. I shall not read many of these sections, 
but I wish to read this to show the position that one occupies 
if he entertains such views of these military and harsh measures 
and attempts to uphold them before the country. 

" Thus we have traced, with some care, the thread of judi- 
" cial argument through the various constitutional provisions 
" upon which the question of martial law under our goveru- 
'• ment depends. It was not deemed necessary to cite in the 
" notes, all the crude utterances which have fallen from judges 
" and trom legislators on this subject. This is one of those 
:- questions of constitutional law which the author expects to 
" unfold more fully in another connection hereafter. 

" It may be lyere said, however, that, though the constitu- 
" tional provisions relating to this subject are, when fully ex- 
'• amined, plain enough, it is very difficult to tell the truth 
" upon it, without subjecting one's self to being misunderstood. 
" This matter has been bandied about in politics, and each 
" reader is seeking to know whether the author belongs to 
" this party, or to that, and he is ready to approve or disap- 
" prove, according as he likes or dislikes the answer to this 
"' question. Yet iu the present case, the author belongs 
" neither to this nor to that party ; but he is one of those few 
'•' persons who hold truth to be superior to party, and who 
'• seek it alone, without asking or caring whether it pleases 
" one party or another." 

I read from section 52 : 

" Martial law is elastic in its nature, and is easily adapted to 
'varying circumstances. It may operate" 

I wish to call this particularly to the attention of the senate: 

" It may operate to the fatal suspension or overthrow of the 
" civil authority ; or its touch may be light, scarcely felt, or not 
" felt at all, by the mass of the people ; while the courts go on 

2334 COURT OF impeachments; 

"in their ordinary course, and the business of the community 
" flows in its accustomed channels." 

What have Ave heard from the prosecution on the other side 
of this case? Why, that the courts were open ; the commis- 
sioners held their regular meetings ; that the clerk issued writs ; 
and that the magistrates might proceed as they liked. Admit 
it. The authority that makes this declaration is not bound 
to visit its severity upon every citizen. " The touch," says 
this learned writer, "may be light. The great mass of the 
"people may not feel it at all. All the main business of 
"the community may flow on in its accustomed channels." 

T was not a little amused at one portion of the speech of the 
learned gentleman [Gov. Graham.] He seemed to think that 
the respondent had treated the people of Alamance and the 
people of Caswell in the general, too kindly, lie had per- 
mitted the great mass of the people not to feel the force 

martial law at all. He had permitted them to go on and 
transact their business as usual, and had only visited this law 
of necessity upon a smaller number of the citizens, when if it 
was really martial law and properly declared, the gentleman 
thinks he ought to let every man feel the weight of it. 

Sir, the respondent deserves much credit tor taking care 
thai but very few in either of these counties should feel the 
weight of martial law. But it would seem that he committed 

:vat. blunder because he let it. fall upon men of high position. 
It he had visited the weight of martial law upon some few— if 
it had only been in the lowly walks of society, men of little or 
no influence— as I understand the argument — there would have 
been no complaint of that kind of martial law. 1 will read a 
portion of si ction 55. 

"This question ie not perhaps quite so clear on the face of 
"our constitution [the right to declare martial law] as are some 
" others, yet it is believed that the only real difficulty In the rnat- 
" ter lies in the acts oi political demagogues who wish to gain 
1 the votes of unthinking people by representing themselves to 
" be the champions of their rights, and their defenders against 


" what they call the tyranny of martial law. The truth is that 
" martial law is the only kind of law which is adapted to those 
" circumstances in which a reasonable military power will ask 
" it to prevail, and no people or portion of the people can exist 
" even for a day without some kind of law governing them." 
Now comes that important clause : 

" If the civil tribunals in the best of faith endeavor to stretch 
' their precedents and adapt their processes to the emergencies 
' which call for martial law, they so change the precedents 
' which must govern afterwards as to render the jurisprudence 
' of their courts unfitted for times of peace ; and as martial law 
' uecessarily passes away with the emergency which called it 
' into action, a wise people, a people fit for freedom, will bow 
' thankfully before it, rejoicing that thus they preserve the law 
' ot the civil tribunal uncorrupted and un contaminated to enter 
' again upon its bright work the morning after peace. And 
; that which designates a people fit for freedom from a people 
' which must be made slaves is, that the former discerns be- 
' tween tyranny and law, spurning the one and accepting 
' thankfully the other, while the latter kicks at the one and 
' the other alike." 
Section 56 says : 

" If the reader will turn to the constitution he will there see 
" that the power conferred on the judges is 'judicial.' It is 
" not all the power of the government, but only the 'judicial 
" power.' Says the constitution, ' The judicial power of the 
' ' United States shall be vested in one supreme court, and in 
<c ' such inferior courts as the congress may from time to time 
*' ' ordain and establish.' Now, here is the power of martial 
" law because martial law is not a thing pertaining to 'judical 
" power.' The United States courts cannot establish martial 
" law on the one hand, nor on the other can they overthrow 
" or interfere with it in any way." 

So that this high authority settles the question, as admitted 
by the managers, that if martial law is declared by proper 


authority, the judicial power cannot in any way interfere 
with it. 

Section 57 says : 

•• There are certain principles laid down in the constitution 
;l to judge the judicial power. In some of the clauses express 
" words mention the 'judicial ' as the power to be guided, 
" and in others the form of the language is such as merely to 
" point to this power alone. Of the latter let the fourth and 
"fifth articles of the amendments serve as samples. They 
" are read consecutively as follows : ' The right oi the people 
" ' to be secure in their persons, houses, papers and effects 
" ' against unreasonable searches and seizures shall not be vio« 
" ' lated, and no warrants shall issue but upon probable cause, 
" ' supported by oath or affirmation, and particularly describing 
"'the place to be searched, and the persons or things to be 
" ' seized. No person shall be held to answer for a capital or 
" ' otherwise infamous crime, unless on presentment or indict- 
" ' ment of a grand jury, except in cases arising in the land or 
"'naval forces or in the militia when in actual service in 
'"time of war, or public danger, nor shall any person be 
" ' subject for the same offence to be twice put in jeopardy of 
'•' life or limb, nor shall be compelled in any criminal case to 
" ' be a witness against himself nor be deprived of life, liberty 
"' or property without due process of law, nor shall private 
" ' property be taken for public use without just oompensa- 
" i tion,' Perhaps the last clause is properly construed, as it 
' is by the courts, to be a limitation upon the legislative as. 
" well as the judicial power, and indeed the whole restrains 
" the legislature from passing any act which shall command 
•' the courts to violate in their proceedings the provisions 
" thus laid down. Hut these provisions have nothing to do 
11 with the martial power of Avar.'' 

Section CO is in these words: The "President having this 
"power put into lii.s hands, takes the oath to preserve, protce; 
" and defend the constitution of the United States." In another 
" clause he is enjoined to ' take care that the laws be faithfully 


"'executed.' It is obvious that the word 'laws' in this con- 
" nection does not have any restrictive meaning; it is plural in. 
" its form, and, if it were singular it would not be restrictive ; 
<; it applies not alone perhaps, not primarily, to the laws ad- 
" ministered by the judicial power, the judges to whom they 
" are expressly committed being ordinarly competent to execute 
" these laws, but it applies in an especial manner, to the law 
" martial which is executed by the military forces whereof he 
" is the commandei -in-chief. If, by reason of insurrection or 
" rebellion at home, or invasion from abroad, there comes a 
" disturbance which the civil power cannot or will not suppress, 
" he is bound to call [into action this power of war, carrying 
" with it the law martial." 

I will not read any more from that authority, but will read 
from the opinion of Chief Justice Taney, in the case of Luther 
vs. Borden, reported in 8 Howard. Speaking ot the clause in 
the constitution providing for oases ot domestic violence, the 
learned chief justice says ; 

" So, too, as relates to the clause in the above mentioned 
u article of the constitution providing for cases of domestic vio- 
M lence. It rested with congress to determine upon the means 
(l proper to be adopte:! to fulfill this guarantee. They might, 
" if they had deemed it most advisable to do so, have placed it 
'• in the power of a court to decide when the contingency had 
"happened which required the federal government to interfere. 
" But congress thought otherwise, and no doubt wisely, and 
" by the act of February 2Sth, 1795, provided that in case of 
" an insurrection in any state against the government thereof, 
" it shall be lawful for the president of the United States on 
" application of the legislature of such state or of the executive, 
" when the legislature cannot be convened, to call forth such 
" number of the militia, of any other state or states, as may be 
" applied for, as he may judge sufficient to suppress such insur : 
w rection. By this act the power of deciding whether the exi- 
" gency had arisen upon which the government of the United 
f * States is bound to interfere is given to tjip president. lie is \g 


" act upon the application of the legislature, or ot the executive, 
" and consequently he must determine what body ot men con- 
stitute the legislature .and who is the governor, before he can act. 
■:•:• * # * After the president has acted and called out the 
" militia, is a circuit court of the United States authorized to 
"inquire whether his decision was right? Could the court 
'* while the parties were actually contending in arms tor the 
'' possession of the government, call witnesses before it, and 
,k inquire which party represented a majority of the people? 
*' If it could, then it would become the duty of the court (pro- 
" vided it came to the conclusion that the president had decided 
•• incorrectly) to discharge those who were arrested or detained 
M by the troops in the service of the United States, or the gov- 
■' eminent which the president was endeavoring to maintain. 
u If the judicial power extends so tar, the guarantee contained 
v> in the constitution of the United States is a guarantee of 
" anarchy and not of order. Yet if this right docs not reside 
•■ in the courts when the conflict is raging — if the judicial power 
ki is at that time bound to follow the decision of the political, it 
" must be equally bound when the contest is over. It cannot 
" when peace is restored punish as oil'ences and crimes the acts 
" which it before recognized, and was bound to recognize as 
" lawful. * - * * And in that state of things the officers 
" engaged in its military service might lawfully arrest any one 
■• who from the information before them, they had reasonable 
" grounds to believe was engaged in the insurrection, and 
u might order a house to be forcibly entered and searched when 
" there were reasonable grounds lor supposing he might be 
■• there concealed.'' 

This case goes on and expressly recognize* and confirms the 
proceedings in Rhode Island declaring the people of that state 
in a state of insurrection, so that the right to declare a state in 
insurrection and to enforce martial law is established by that 

The next authority which I cite is Finlason on Martial Law, 
■i recent and most learned and exhaustive work on the subject,, 


which I commend to the attention of every senator before he 
comes to a decision in this case. It is entitled " Considerations 
" upon Martial Law by William F. Finlason, Esq., of the Mid. 
" die Temple, Barrister-at-law, author of the Treatise on Mar. 
" tial Law." Speaking of martial law he says : 

" After the era of the revolution it is true that the exercise 
u of this prerogative, at all events in its fulness, never arose in 
this country, by reason, as Ilallam observes, of our standing 
army ; but in Ireland, where the common law is the same. 
and where the necessity for martial law has unhappily arisen 
almost within living memory, it was exercised without any 
statute to authorize it, and although by reason of horrible ex- 
cesses, bills of indemnity were required, and in several in- 
stances, as those of Wolfe Tone, J. W. Wright and J. Wi 
Grogan, its exercise after rebellion was over, or in districts 
where it had never been, and where in fact martial law did 
not exist, was undoubtedly illegal; yet even when, after the 
Union, the Imperial Parliament thought tit permanently to 
regulate the subject, it not only did not negative the preroga- 
tive of the crown to declare martial law, but distinctly de- 
clared it, and carried it further, providing for its exercise, not 
only in cases of actual but apprehended rebellion, and in 
districts where peace was not so destroyed, but that the com- 
mon law could have its course. And so even in our own 
time, no later than in the last reign, parliament passed an act 
relating to Ireland, in which the prerogative was not only 
declared but enacted, and elaborate provisions were laid down 
for the regulation of its exercise in times of apprehended re- 
' bellion, and more especially for the trial of rebels by court 
' martial, whether civilians or soldiers." 
Then at page 6, he says : 

"So in India, if not in any of the colonies, regulations or 
" acts of legislature were passed providing for the exercise of 
" this important power. In 134-6 an act of the legislature of 
'Jamaica, passed for the purpose, received the sanction of the 
" crown under the government ot Lord Russell, and dis' 

i23-tO COTTRT OF" rMPEACltMEtfTgi 

" tinctly authorized the governor in council to declare and 
" exercise martial law for the suppression of rebellion^ 
"■without any definition or limitation of the term, without 
"any restriction of its exercise, and leaving it to be applied 
" and exercised according to the sense in which it was under- 
" stood by parliament in the other acts, and in which it was 
" explained by all text boolc6 of military law in the hands of the 
" British army as the application of absolute military law to 
" the whole population. jSor Was this the doctrine of military 
" writers alone, nor even of lawyers in this country. It was 
"equally laid down by the greatest constitutional writers, not 
" only in this country but America ; and while the illustrious 
" Hallam declared that martial law was the suspension of civil 
"jurisdiction just as the great Duke declared it to be the will 
" of the commander, the great Chancellor Kent declared it as 
" the absolute rule of a military chief/' 

I now read again from page C>, note C: 

" The military law as exercised by the authority of Parlia- 

at v %t 

" ment and the mutiny act, annually passed, together with the 
" articles of war, is not to be confounded with that different 
u branch of the royal prerogative called martial law, which is 
y ' only to be exercised in time of rebellion." 

He also cites McAuthen and Simmons on Courts Martial } 

tt There may indeed be times of pressing danger when the 
" conservation of all demands the sacrifice of the legal rights of 
tx afew> there may be circumstances that not only justify but 
" Compel the temporary abandonment of constitutional power. 
"It has been banal for all governments during an actual rebel* 
" lion to proclaim martial law on the suspension of civil juris- 
" diction. Martial law is quite a distinct thing (i. e., from ordi- 
" nary military law.) It is founded on paramount necessity, 
''and proclaimed by a military chief." 

At page 8 of this work, note A, he says : 

" Martial law is a lex ndn scrtpta. It arises on paramount 
" necessity to be judged of by the executive Martial law 
11 comprises all persons — all are under it in the country or di^- 


* 4 trict in which it is proclaimed whether they be civil or mili- 
" tary. There is no regular practice laid down in any work 
" on military law as to how courts martial are to be conducted 
" or power exercised under martial law, but as a rule I should 
44 say that it should approximate as near as possible to the reg- 
" ular form and course of justice, and the usage of the service, 
" and that it should be conducted with as much humanity as 
44 the occasion may allow according to the conscience and 
44 the good judgment of those entrusted with its execution. 
" It overrides all other law. It is entirely arbitrary ; it is far 
" more extensive even than ordinary military law. 

44 The Duke of Wellington said in the House of Lords on 
" the 1st April, 1851, in reference to the Ceylon rebellion in 
<; 1849, that martial law was neither more or less than the 
" will of the general who commands the army; in fact, mar- 
" tial law is no law at all ! And Earl Grey on the same oc- 
" casion said, 'that he was glad to hear what the noble Duke 
" had said with reference to what is the true nature of martial 
*' law, for it is exactly in accordance with what I myself Wrote 
" to my noble Lord Torrington at the period of those transac- 
14 tions in Ceylon. I am sure I was not wrong in law, lor I 
" had the advice of Lord Cottenham, Lord Campbell, and the 
44 Attorney General (Sir J. Jervie) and explained to my noble 
' { friend, that what is called proclaiming martial law, is no 
'•' law at all, but merely for the sake of public salety in cir- 
" cumstances of great emergency, setting aside all law and 
"acting under the military power \ Sir J. W. Hogg, chair- 
" man of the East India company, said in the House of Corn- 
44 mons on the 29th of May, 1851, when an honorable member 
44 was inclined to carp at the statement of the Judge Advo- 
41 cate General (Sir D. Dunclas) that martial law was a denial 
" of all law, but the Judge Advocate was quite correct ; it was 
44 a denial of a law, and could not be the subject of regulation ; 
41 when martial law was proclaimed, the commanding officer 
" must use his discretion." 

That means*, Mr. Chief Justice and Senators, a denial of all 


civil law, and that in the locality where the insurrection is 
declared, the civil law has no force or effect. Martial law 
overrides all ordinary law, and all constitutional law, and they 
are to be governed by martial law alone. Speaking this time 
in 1861 he says, at page 10 : 

So recently as 1S50, "the same doctrines were distinctly and 
"broadly laid down by Mr. Ileadlam, the Judge Advocate Gen- 
" eral at the time, in an official letter which was published, and 
" which none ventured to challenge, and in which the nature of 
• l martial law as absolute military authority overruling all ordi- 
" nary law whether military or municipal, was clearly and un- 
" equivocally maintained with the entire approbation of the gov- 
ernment, of parliament and the whole country. And upon 
'■'this footing the subject was left as before, except in Ireland 
" and India, without any other definition, without any restric- 
" tion or limitation, and without any regulation for the future 
•'exercise of this tremendous power admitted to be vested in 
" any colonial governor." 1 

A then again : 

" Martial law, according to the Duke of Wellington, is 
" neither more nor less than the will of the general who com- 
w: mands the army. In fact, martial law means- no law at all ; 
" therefore the general who declares martial law, and commands 
" that it should be earned into execution, is bound to lay down 
>K the rules, regulations and limits according to which his will 
•• is to be carried out." 

I now read from page 11 : 

" Accordingly, when on the occasion of the recent rebellion. 
" in Jamaica, the governor, under a local act not defining mar- 
"tial law, but simply imposing certain conditions or restrictions 
" up<»n the power of declaring it, which the statute itself im- 
,; plies was already in the governor, he, under the advice of the 
••attorney general, and with the assent of the council, declared 
" it in the form of proclamation, drawn in accordance with 
li these traditions and doctrines on the subject, and purporting 
u to place the whole district under military rule, and to eixv- 


"power the troops to use the measures of war against those 
"found in rebellion. And he, in conjunction with the com- 
"mander-in-chief, upon that principle appointed an officer to 
" command the district, who accordingly assumed the entire 
"and exclusive government of it. On that occasion, when the 
"governor, under the local act, with the assent of the council, 
" declared martial law, there were no regulations for its exer- 
"cise. No instructions have been issued either to colonial 
" governors or to military commanders by the crown ; and in- 
" deed both parliament and the crown had acquiesced in what 
"was laid down in the Ceylon case, that no definite instructions 
" could be issued. At all events none were issued, and on the 
" breaking out of the rebellion the governor was left to his own 
" discretion ; and he having declared martial law, left its execu- 
" tion to the military commander." 

Mr. BRAGG. Does it say what they did to the governor 
in that case ? 

Mr. BOYDEK No, sir. 

Then again on page -17 : 

" The military law as exercised by the authority of parlia- 
" ment, and the mutiny act annually passed, together with the 
" articles of war, is not to be confounded with that different 
" branch of the royal prerogative called martial law, which is 
"only exercised in the emergency of invasion and insurrection 
"'or rebellion. Thus Simmons stales, that courts martial are 
" regulated by the mutiny act and the articles of war and gen- 
" eral orders, and that their practice is moreover regulated on 
"points where that law is silent, chiefly by the customs of war, 
" i. e., the usages of the British army. (Simmons on Court 
" Martials, p. 87.) So it is laid down in that work, p. 97, that 
" the proclamation of martial lav/ renders every man liable to 
" be treated as a soldier, that is, he is amenable to courts martial 
" under the orders of military authorit} 7 ." 

And I mention here (and it was cited I think on the part of 
the managers from the trial of Johnson) the discussion in the 
house of parliament, touching the trial and the execution of 


the Rev. John Smith, of Demerara, and I call the attention of 
senators to the quotation from what Lord Brougham said on 
that occasion. He declared that every person within the lo- 
cality declared in a state of insurrection was to be treated as a 
soldier ; and Sir James Mcintosh, whose authority is cited in 
that case, also recognizes the same doctrine, and then there 
is the case which I will cite now, known as Mrs. Alexander's 
cotton case, in which it is distinctly laid down by the supreme 
court of the United States that every person in the locality 
declared in a state of insurrection is liable to be considered an 
insurgent, and the case of ex parte Moore before the chief 
justice, and the case of ex parte Burgen before Judge Bond, to 
recognize the same doctrine. 

The hour of ten o'clock having arrived, the court on motion 
took a recess until half past seven o'clcck. 


The COUItT re-assembled at half-past seven o'clock. Hon. 
11. M. Pearson, Chief Justice of the Supreme Court, in the 

The CLERK proceeded to call the roll of senators, when the 
following gentlemen were found to be present : 

Messrs — Adams, Albright, Allen, Barnett, Battle, Brogden, 
Brown, Cook, Council, Cowles, Crowell, Cnrrie, Dargan, Ed- 
wards, Eppes, Flemming, Gilmer, Graham of Alamance, Gra- 
ham oi Orange, Hawkins, Ilyman, Jones, King, Latham, Led- 
bcttcr, Linney, Love, Manney, McClammy, McCotter, Merri- 
rnon, Moore, Murphy, Norment, Olds, Bobbins of Davidson, 
Rnbbins of Ho wan, Skinner, Speed, Troy, Warren, Whiteside 
and Worth — 43. 

Mr. HOYDEN resumed his argument in behalf of the res- 
pendent. He said : 

Mr. Chief Justice and Senators : I had not got through 
all the authorities on the point I was discussing when the 
court took the recess, and I will now proceed. I wish to cite as 


authority Hough's Practice of Courts Martial, and I will read 
from pages 383 and 3S4. 

" When martial law is proclaimed, courts martial are thereby 
" vested with such a summary proceeding, that neither time, 
" place nor persons are considered. Necessity is the only rule 
"of conduct, nor are the punishments which courts martial 
" may inflict, under such an authority, limited to those which 
" are, under ordinary circumstances, prescribed by the mutiny 
" act and articles of war ; they may inflict the punishment of 
" death even, where the imperious necessity of the case and 
" the existing circumstances warrant it, when such a penalty 
" would not, for such cases, be visited with such severity by 
" the ordinary common law ; but such powers cannot be as- 
sumed; they must be duly delegated by proper authori- 

*y." * * * 

" The right of the legislature to adopt this violent but neces- 
" sary remedy, and to invest the crown with this extraordinary 
" power of the sword, is likewise pointedly asserted in constitu- 
tional principles, that all may perceive its entire legality. It 
" is there declared, that it shall be lawful for his majesty, or 
" for any (chief governor or commissioner, whom he shall ap- 
" point during the continuance of the rebellion, and whether 
<; the ordinary courts of justice shall or shall not be open to 
* k issue his or their orders to all officers, commanding his maj- 
"" esty's forces, and to all others whom he or they shall think 
" fit to authorize, to take the most rigorous and effectual meas- 
" ures for suppressing the said rebellion in any part of the king- 
" dom, which shall appear to be necessary for the public safety, 
" etc., and to punish all persons acting, aiding or assisting in 
" such rebellion, either by death or otherwise, as to them shall 
" seem expedient. The statute likewise gives a power to arrest 
" or detain in custody, all suspected persons, and to cause them 
" to be brought to trial, in a summary manner, by courts martial, 
" and to execute their sentences, and release all who act under 
4i its authority from responsibility to the other courts. 

I now proceed to read some authorities upon the question 


as to how an officer of the government is to be treated where 
he is intrusted with a discretionary power and has executed 
that power honestly. The first authority which I cite is from 
Finlason on Martial Law, beginning at page 147 and 148, as 

" At all events, assuming what is admitted on all hands, that 
" there is a power in the crown or the executive, whether 
" under the name of martial law or otherwise, to do all that is 
" necessary for the occasion, that amounts in substance to a dis- 
(i cretionary Authority, fur it is an authority to do all that the 
" executive, in their judgment, may deem necessary, audit 
" follows that, according to all the analogies ot ordinary law 
" they would not be liable at law for its honest exercise nor 
" except for an abuse of it. For it is a general principle that 
" although even a minister of state is legally liable for an act 
" in excess of his authority, as where in ordinary times he does 
" an act which, according to ordinary law, he could not do at 
" all ; yet, on the other hand, under ordinary law, the meanest 
41 magistrate or officer of justice is protected, if he acts honestly 
" in the exercise of a discretionary authority ; otherwise, it is 
" obvious that there would be no safety in actions in the exer- 
cise of public functions, and no one would be willing to act 
"on them, the result of which would be fatal to the great object 
" of government, the public safety. And if this immunity 
" attends the humblest officers of justice, how much more would 
l> it in law be deemed to attend the exercise by the executive 
" of their high functions from which all others derive their 
" authority." 

There is another authority which I have not here but I can 
stato it. it will he found in 2 Sir William Blaokstone's Reports, 
the case of Miller vs. Sears, at page 1144. It is the opinion of 
Chief Justice DeGrey, where he lays down the identical doc- 
trine which 1 have just read from this book, lie says exprcss- 
lv that an officer acting honestly in the discharge of the discre- 
tionary duty is not liable for any error which he may commit. 

1 next refer to the case cited by the learned counsel in the 


opening argument on behalf of the prosecution. It is found in 
12 AVheaton, Supreme Court Reports, — the ease of Martin vs. 
Mott. I read from page 32 : 

" But it is now contended, as it was contended in that case, 
" that notwithstanding the judgment of the president is conclu- 
" sive as to the existence of the exigency, and may be given in 
' evidence as conclusive proof thereof, yet that the avowry is 
" fatally defective, because it omits to aver that the fact did 
" exist. The argument is, that the power confided to the presi- 
" dent is a limited power and can be exercised only in the 
" case3 pointed out in the statute, and therefore it is necessary 
" to aver the facts which bring the exercise within the perview 
" of the statute. In short, the same principles are sought to be 
" applied to the delegation and exercise of his power intrusted 
" to the executive of the nation for great political purposes, as 
" might be applied to the humblest officer in the government, 
'■ acting upon the most narrow and special authority. It is the 
" opinion of the court, that this objection cannot be maintained. 
" "When the president exercises an authority confided to him by 
" law, the presumption is that it is exercised in pursuance of 
" law. Every public officer is presumed to act in obedience to 
"• his duty, until the contrary is shown ; and a fortiori, this 
" presumption ought to be favorably applied to the chief magis- 
" trate of the union. It is not necessary to aver, that the act 
" which he may rightfully do, was so done. If the fact of the 
" existence of the exigency were averred, it would be traversa- 
" ble, and of course might be passed upon by a jury ; and thus 
" the legality of the orders of the president would depend, not 
" on his own judgment of the tacts, but upon the finding of 
'•those facts upon the proofs submitted to a jury. This view 
" of the objection is precisely the same wdiich was acted upon 
" by the supreme court of New York, in the case already re- 
" ferred to, and, in the opinion of this court, with entire legal 
" correctness. * * * 

" Whenever a statute gives a discretionary power to any person 
" to be exercised by him upon his own opinion of certain facts, 



" it is a sound rule of construction that the statute constitutes 
" him the sole and exclusive judge of the existence of those 
" facts. But in the present case we are all of opinion that 
" such is the construction of the act of 1795, It is no answer 
" that such a power may be abused, for there is no power 
" which is not susceptible of abuse. The remedy for this, as 
" well as for all other official misconduct, if it should occur, is 
" to be found in the constitution itself. In a free government 
" the danger must be remote, since in addition to high quali- 
" ties which the executive must be presumed to possess of 
" public virtue and honest devotion to the public interests, 
" the frequency of elections, and the watchfulness of the 
" representatives of the nation, carry with them all the checks 
" which can be useful to guard against usurpation or wanton 

The learned manager, [Mr. Sparrow,] in quoting from the 
case from which I have read, concludes by saying that the 
remedy referred to is impeachment. If I understand that 
case there is no such intimation in it. The remedy expressly 
stated is that of frequent elections, not impeachment at all. 

Those are the principal authorities which I wish to read upon 
this subject; but there are two authorities in our own courts, 
1 mean upon the question of the presumption of the law being 
constitutional, and it being the duty of the chief magistrate or 
other efficer to act upon that presumption. The first is the 
case of Hoke vs. Henderson, 4- Devereux Reports, page 1. I 
need not read the case. The court there lays down the doc- 
trine expressly that an act of assembly is presumed to be con- 
stitutional. And there is another case where that doctrine is 
laid down in 1 Devereux and Battle, the case of Carney N'eal, 
qui ta/m vs. Mills Roberts. That case adopts the same doctrine. 
Then we have another authority which I wish to read ; it is a 
series of resolutions introduced into the senate during the 
present session by one of the distinguished members of this 
body, [Senator "Warren. ] I read the fourth and fifth resolutions : 

" 4th. That the governor of North Carolina has no veto 


"power nor any power equivalent thereto, and cannot dispense 
" with laws or suspend the execution thereof. 

" 5th. That the governor is not at liberty in his official charac- 
" ter to feel or to affect constitutional scruples, and to sit in judg- 
" ment himself on the validitv of any act of the general assem- 
" bly, duly ratified, and to nullify it if he so chooses, hut it is 
" his duty to execute such act until it shall have been declared 
" unconstitutional in due course of law." 

Those are the authorities which I bring to the attention of 
this court upon that question, and I apprehend that they are 
perfectly conclusive. It would be difficult to find a gentleman 
more capable for laying down the law upon that subject than 
the gentleman who introduced those resolutions. His high 
character as a jurist is well known throughout the state, and 
I therefore cite his language as high authority. 

I now read section nine of the bill of rights as follows : 
" All power of suspending laws, or the execution of laws, 
" by any authority, without the consent of the representatives 
" of the people, is injurious to their rights and ought not to 
" be exercised." 

Now what I contend for is this : that the act of the 29th of 
January, 1870, usually called the Shoffneract, expressly autho- 
rizes the governor to declare counties, where life and property 
are not protected by the civil authorities, in a state of insur- 
rection ; in other words, to suspend all the ordinary and consti- 
tutional laws of the county. It may be, and has been said on 
the part of the prosecution, that this act is unconstitutional. I 
deny that ; but the protection of my client does not depend 
upon that denial, for there is no doctrine better established, 
and I trust it will not now be denied by the senate, that 
whether unconstitutional or not, it is the duty and the right of 
the governor to carry that law into execution ; for let me say 
here to senators, I cannot suppose there is a solitary senator, 
whatever might have been his opinion when this case was first 
opened, and before the testimony was offered on behalf of the 
respondent, who is not satisfied that the identical state of things 


contemplated by that act existed in the county of Alamance 
and in the county of Caswell : and I entertain no doubt that it 
existed in a number ot other counties as well. 

Let us see by the proof in this case whether that proposition 
is true or false. Will any man under the sanction of an oath, 
avow that life and property were protected by the civil author- 
ities in the counties of Alamance and Caswell ? Every senator 
must be satisfied that that question is put beyond all doubt. 
Life and property safe there ! Recur, senators, to the proof in 
this case ; go with me for a moment to the house of those poor 
and lowly colored men, and see how they have been treated. 
Have their lives been safe? Has their property been safe? 
Has there been any protection afforded to them by the civil 
authorities? Can any man have any doubt upon that subject? 
Remember the cases of Outlaw, of Puryear, of Morrow, of Holt, 
of Allen, of Worth, and of scores of others, and I ask have they 
been protected? And look, too, at the flimsy pretexts which 
have been set up here before this high court as excuses for these 
iniquities. This man they say was whipped because he had 
been stealing. Has any proof been offered before this court that 
tends to show that in this respect he was not as clear of stealing as 
any man in this senate chamber ? Not a particle, although that 
has been avowed months since and they have had every oppor- 
tunity to show such guilt, if guilt existed. And so all the 
flimsy excuses which they have offered for their outrages fall to 
the ground. I ask senators to consider, when they come to 
pass upon these facts, knowing that these outrages have been 
committed and that the victims have had no redress in any one 
case, that what does not appear before the court is to be taken 
08 not existing. There is not a particle of proof that the vic- 
tims of these cruel chastisements have been guilty of any viola- 
tion of law, and you must take it that axcry man of them is 
entirely clear of the charges which have been insinuated against 
them as excuses for these acts of murder and chastisement. 
With these facts before him, may God have mercy upon any 
man who will not say that it is established beyond all manner 


of doubt, that there was no protectoin by the civil authorities 
for men in Alamance and Caswell against outrages from this 
band of cut-throats and assassins — no protection — none at all. 
Night after night, in more than a score of instances, these poor 
colored innocent men have had their dwellings burst open and 
have been dragged from their homes in view of their screaming 
wives and children and chastised as no humane man would 
chastise a brute. Yes, sir, they have not only chastised them, 
but in some instances have fired into their houses and, in one case 
at least, have laid their victim prostrate with gunshot wounds 
trom which he suffered from three to four months, and to day 
even he is without redress. Remember the case of Puryear, an 
humble and deranged man, as the prosecution have proved him 
to be : he is dragged out of his house by these cowardly mis- 
creants, and with a heavy stone tied to his heels, thrown into a 
mill pond and drowned. Then remember the testimony of a 
Kuklux magistrate who appeared before this court and said that 
if Puryear's case had not been reported to the military he would 
have issued a precept against Puryear's own wife for the mur- 
der of her husband ! May God forgive such a man as that wit- 
ness. There are the facts which show what a horrible state 
of feeling existed in the county of Alamance. 

Nobody knows by whom Outlaw was hung. A Kuklux 
sheriff, the chief of a camp, was in Graham the night that 
murder was committed, and he never moved his finger after- 
wards to ferret out the murderers. Jacob A. Long, a chief of 
the Kuklux, and other citizens, saw the crowd, and never 
uttered a word of protest against the crime. Does Long, the chief 
of the county, and Murray, the sheriff and chief of a camp, 
expect to satisfy any senator that if they, being in the secrets 
of the order, had desired to ferret out these guilty wretches, 
who to show their utter contempt of law had murdered their 
victim in the view of the court house in the county town, could 
not have ascertained these murderers? lam talking to men 
capable of appreciating testimony, who can understand its sig- 
uificance ; and any man who, I think, has heard of the object 

l'352 court of impeachments. 

of these organizations, the communications they have among 
themselves, sees at once that this perjured sheriff attended the 
inquest, not in the hope of finding out who had committed the 
• Iced, but was there to see whether anything would come out to 
implicate him inihis deed ot darkness. "When he is examined, 
lie says he made efforts to ascertain who had committed the mur- 
der. " Did you follow the tracks of the 75 or 100 horses ridden 
by the men there that night to see where they had gone to ?" 
: ' No I did not. I did not examine the tracks. I stayed there 
'• till this examination was over before the coroner's inquest 
" and then I tried to find them out." Does anybody believe 
that I Where did he inquire '. Who is the man lie inquired 
of '. Where is any evidence that he asked of a single soul 
who it was of his brother Kuklux, who had committed this 
fell deed I The proof in directly to the contrary. He made 
no such effort, lie had the means — being a member of this 
band of scoundrels, of ferreting out every man of them. 
Why didn't he do it? Jacob A. Long swears he was afraid 
Jo interfere. Does anybody doubt tr at — he and the sheriff 
were actually afraid to make any effort to brine: these assassins 
to justice! Have we not proved here that it was a part of 
this damnable conspiracy, to keep the secrets of the society, 
and that if any member revealed them the penalty was death '.. 
Well might they be afraid, and I have no doubt they were. 

- nators will recollect the horrible outrages on two occasions 
committed upon Caswell Holt, first terribly whipped and a 
year after shot down in his own dwelling and his family 
driven to the woods, afraid to remain in their home. Remem- 
ber, too, the case of Samuel Allen, a peaceful and lontly 
colored man, as free from guilt as any man in this senate 
chamber. These vidians come to his house to murder him 
and another man named Joseph Mebane, whose high crime 
was that he taught a school of children of his own color. 
They attacked the house, they endeavored to break in, but 
the brave old Sam Allen mot them in a manner which should 
place his name on t he pages of history ; with fifty of the armed 


nnd disguised cowards on the outside, he thrust a sabre 
through one of them who was carried off dead, and secret! v 
buried. The villian got what he richly deserved, and it would 
have been well if his companions in crime had met the same- 
fate. But that was not enough ; Samuel Allen's house was 
to have another visitation from these assassins. Fortunately 
he was away from home, but Mebane was there and a poor 
old colored man by the name of Robin Jacobs and another. 
They heard, the approach of the party and ran from the house, 
two of them in one direction and Robin Jacobs in another. 
They were pursued. Robin Jacobs, as innocent of any viola- 
tion of the law as any man in this senate chamber, was over- 
taken and shot through the body, thrown against a pile of 
logs, and there he was found the next morning in the agonies 
of death. Senators, was life and property protected in Cas- 
well l Could the civil power afford protection there ? 

Go with me, senators, to the house of poor Morrow, and see 
these cowardly assassins drag him from his bed at midnight, 
and from his wite and children ; see his little babe in his wife's 
arms, and hear the frantic cry of this poor man's wife, " spare, 
" spare my husband, for God's sake have mercy upon him for 
" this one time." It would seem that these wretches had no 
" hearts but hearts of flint. It produced no effect. He says, " If 
kt you won't spare me, pray let me bid good bye, let me give 
" my wife a last embrace before you kill me." " We will kill 
" you if you don't shut your mouth." "Pray let me bid my 
" baby good bye." But no, they drag him from his wife, they 
drag him from his little ones, and they hang him to a tree un- 
til he is dead ! dead ! dead ! Is that all ? This poor heart- 
stricken colored woman with her children flee to the woods, 
remain out in the cold all night; when the light of day comes 
and these murderers have retired to their hiding places, she goes 
forth to seek her husband and finds him and her brother hang.-- 
ing dead, the victims of this brave and courtly Kuklux judiciary, 
who have thus carried out their own decrees. Is there any 
senator who lias any apology to offer for such infamy as this? 


Is there auy senator here who is not prepared to say that life 
and property were without protection irom the civil authori- 
ties ? Had the humble black man, or humble white man, if he 
happened to be a republican, any piotection if he fell under the 
displeasure of these murderous bands? 

Do senators recollect the number of white men who were 
scourged and outraged by these wretches \ Twenty-one white, 
men, we have proved before this court, have been outraged and 
no redress has been had in any case. Let me recur to a few to 
illustrate : 

John Aired, Alamance. House visited by the Kuklux. " If 
" you don't change your politics and be a white man we will 
" cut your throat next Saturday night," or " make your throat 
" red." That is the proof in this case. 

John Bason, Alamance, August or September, 1869, post- 
master at Haw river, whipped and maltreated. 

Mary Gappins. O yes, the gentlemen laugh— why if she 
were an unchaste woman, have these scoundrels aright to drag 
her from her house and tear it down \ High-toned gentlemen 
they are to protect the morals ot the country against a few in- 
continent women ! That woman's house was torn down, she 
-was turned out of doors with six children on the coldest night 
of the year, and compelled to live for thirteen months in a tent. 
Is there any senator that could have justified any such offense 
as that. 

William F. Simpson, Alamance, November, 1869, seized 
and carried from his house at night, tied to a tree, struck fifteen 
or twenty times, then four or live times more. Blood was cut 
from his naked back ; charge, " cursing the party " and telling 
negroes lies and letting negroes live on his lands. He was made 
to drive the negroes away. Sir, have I not a right to let a 
colored man live on my land it I please ? What is it to these 
wretches ? What have they to do with it? I supposed every 
man had a right to take on his land just such tenants as suited 
him. Is it not a fine state of things that a man must get the 


consent of the Kuklux as to who his tenants shall be ? Are 
senators prepared to justify such conduct as that ? 

Andrew Murray, Alamance, two of his tenants whipped and 
he threatened and compelled to leave his home with his family. 

Leonard Rippey, of Alamance, whipped at Jack Brannock's, 
in Caswell county, five licks for being at a negro house. "You 
are a d — d old radical." Certainly they had a right to whip 
any white man if he was a radical ; nobody can doubt that, I 
suppose ! Rippey was a poor man on his way to Caswell to 
dispose of some molasses that he had made on his place. His 
wagon broke down. He went to this blacksmith's (a colored 
man) just before night. The blacksmith had another job to 
finish and he could not do this job until the next morning, and 
this white man, thus unable to proceed, is guilty of the high 
crime of taking shelter in a colored blacksmith's house until 
morning ! Didn't that fully justify his being scourged ! 

John Hatterly, Alamance, October 29th, house shot into. 
He fired at the party, and they found it convenient to leave. 

Alonzo Gerringer, Alamance, going to a debate, was met by 
the Kuklux aud carried to the woods, threatened with hang- 
ing, made to get down by these wretches and pray for them — 
made to mock the name of our Savior. 

Siddell, Alamance, December, 1869, a carder in the 
woolen mills, whipped many licks on the back. Yes, sir, 
they took this man ; they gave him a most terrible whipping, 
but with the purest motives in the world, and hence their 
actions should not be called in question. It was a part of their 
creed, we know, that if the courts did not interfere to punish 
such offences, to take the duty upon themselves. 

John Overman, Alamance, white, door burst open, ten 
persons came in, struck two licks by each ; one side of his head 

James Coles, Alamance, fall of 1869, whipped by ten or 
twelve after being taken from his house and from his 
wife and two children. I hope the Kuklux informed the 
prosecution what they whipped him for. I suppose it is well 


known on the other side, but they kept it back from us for 
some reason. 

Joseph Mc Adams. In connection with his case, do you recol- 
lect the sheriff of Alamance ? Do you recollect Jefferson 
Younger, who did not make a coffin, or anything that looked 
like a coffin, but he made a box, that is all ! He happened to 
have lumber of that size and he made a box. He made it 
because the camp had decreed it, of which the sheriff was chief. 
What was done with this? Why it was carried in the 
night lime and set against McAdams' door, so that if he opened 
it it would fall in. On it were these comforting words: " Hold 
" your tongue, or this will be your home ; alive today, dead 
" to-morrow." 

Green Lankford, Alamance, Februaiy, 1870, self and wife 
dragged from their bed at midnight — at one o'clock, the lock 
broken. An old man 71 years old, struck fifteen licks after 
being carried to the woods by seven disguised men, charged 
that his wife bad bad it done. 

James O. Ringstaff, October 9th, 1869. Eight or nine men 
• Mine to his house at eleven o'clock at night. Threatened with 
death by hanging it he went to the Gappins' any more. De- 
ceraber, 18G9, they came at night, carried off some few tilings 
and left a notice, and if lie did not leave the county in twenty 
days lie would "pass as if from lite to death." I suppose he 
had quit visiting Gapping', but that wasn't enough — he must 
leave the county. On the 8th of June they again visited hie 
! mi isc in his absence and some things were carried off. 

Corliss ami wife, badly whipped, eleven o'clock at night, 
hover his eyes, bloody water issuing from his wounds, 
wile cut on her head. But Corliss deserved all he got ; he in- 
vited a Colored man into a christian church and he tau<rht a 
colored school, and he was a northern man. and therefore they 
had a right tx> chastise him ! 

Senator Sholfner. Now that case is worthy ot sonic little 
consideration. We have proved here Doctor Moore was in- 
formed by M. Boyd that he had heard that a number of men 


were going to murder Slioffuer on a particular night. And 
Dr. Moore testified here that he saw a member of the present 
house of representatives and a man by the name of Hedgepeth, 
and another named Bradshaw, who was the chief of a camp, at 
Bradshaw's house, near where the murder was to take place, 
and that he met a crowd of men who stated they were on 
their way to execute the fell deed. What had Shoffner 
done? He had introduced this act of the 29th of January, 
8701, known as the Shoffner act. I never understood it till 
now that the official acts ot senators were to lie called in 
question in this way. I care not what may be said or proven 
as to the character of James E. Boyd — and no attempt has 
been made to attack it — Strudwick was there, and Hedge- 
peth and Bradshaw were there, and nobody will doubt it until 
these men come before this senate and deny it — I mean the 
statement of Moore, as sworn to by Boyd. 

And while I am upon that branch of the case I might as 
well discuss the testimony ot John W. Long, of Andrew 
Shoffner, of Nick Dale and of Tilman Blown, whose char- 
acters have been attempted to be impeached. They called up 
Jesse Gant, apparently a respectable man, but one having very 
strong prejudices. They Killed up also Mr. Austin Whitsett, 
and both of these gentlemen say, that from his youth John W - 
Long has had a most infamous character. I admit, for the 
.sake cf the argument, that he has that character. Yet, senators, 
in every case where he has deposed to any outrage he has given 
time and place, and named, the men who were engaged in it, 
and not a man has been brought forward to disprove his state- 
ments; and that would have !>een a vastly better means of dis- 
proving his testimony, than any attempt to show he was a 
man of bad character. It is possible that an unintelligent jury 
in a county court might disbelieve a witness who has been at- 
tacked as Long has, but surely when his testimony stands be- 
fore a learned court like this uncontradicted, when witnesses 
might have been produced to disprove every fact he has sworn 
to if it were false, and when he testified to the same facts 


months ago, and his statements have remained uncontradicted 
from that day to this, not a man whom he has named having 
dared to depose upon oath that Long's statements were not 
true, I take it that his words will he believed — every one. 

And Andrew Shoffner, a colored man, who was whipped by 
these conspirators and who identified some of those who had 
thus outraged him, is also testified to as having a bad character ; 
but these very witnesses brought to impeach his testimony, 
prove that the very morning alter the chasetisement was inflicted, 
they heard of it ; and do the managers expect to get rid of his 
testimony with such corroboration as that ? Can senators say 
they will not believe him when his back shows the marks 
of the whippings he had received and his statements are con- 
firmed by the neighborhood reports, immediately after the 
outrage was perpetrated, that it had been done ? 

Then there is Tihnan Brown, a colored mechanic, and Arch. 
Doll, who overheard the remarks of Hubbard and others at 
1 anceyville, showing the purpose to kill Stephens that day. 
This young man Dickey, who had lived in Caswell less than a 
year when that murder took place, says that these two colored 
men have bad character. But Dickey himselt was a Kuklux, 
and that fact alone is a significant commentary upon the value 
of his testimony. Brown and Doll named the men who made 
the remark they have sworn to — Hubbard, Fowler and Totten, — 
white men all — and not one of them is brought here to con- 
tradict them. I ask if senators expect to get rid of their testi- 
mony by the loose impeaching evidence of a member of the 
Kuklux klan. There is hardly a colored man in the com- 
munity against whom somebody could not be found to give the 
same opinion of his character as this man Dickey gives of 
Brown and Doll. But no amount of discredit that the man- 
agers can throw upon the character of these men will weigh 
a feather in estimating the truth of their testimony, so long 
as Fowler and Hubbard and Totten who could have been pro- 
duced were not put upon the stand to disprove the testimony 
ot these two colored men, 


I cannot go overall this evidence. Twenty two white men 
and forty-two colored men have been outraged and not 
a solitary man in Caswell or Alamance has been punished 
for it. 

And now, senators, go with me for a moment to the town 
of Yanceyville. The court house there, in the bright month 
of May, under the full glare of an afternoon sun, is filled with 
the citizens of the county and listening to harangues of politi- 
cal orators. Stephens, a state senator from that district, is 
present in the meeting taking notes of the speeches, he being 
a republican and the speakers his political opponents. At 
four o'clock he is enticed from the meeting by Wyley and in 
company with him he leaves the room and is never again, so 
far as human testimony has divulged, seen alive. At daylight 
the next morning his body is found with a rope almost buried 
in the muscles of his neck, and fatal stabs in his breast and 
neck. Where is Wyley ? Where is Mitchell ? Both of them, 
it I recollect aright, were brought here last summer and both 
of them were bound over by the chief justice to answer a 
charge of the murder of Stephens. Why have they not been 
produced here to testify as to what they knew of that assas- 
sination ? The managers dared not put them on the stand to 
prove that they were not the perpetrators of this cowardly 
B8*5*'der. I ask, senators, if that vile deed was not calculated 
to shock the whole country ? A man, yes a white man, 
murdered in broad dayling with hundreds of citizens within 
a few feet of the scene and yet nobody knows how or when ! 
We have ascertained a fact which points at two or three men 
as having some knowledge of the murder. The are not put 
on the stand and examined, although they are brought here 
under subpoena. Look at another fact : a written statement is 
prepared by citizens who seek to absolve their community 
from responsibility for the crime, and the brothers of the 
murdered senator are asked to sign it ; and they living in 
dread of the same fate which had befallen their brother, after 
vainly resisting the importunity of these citizens, reluctantly 


put their signatures to the paper, and such a document is 
expected to have weight before this court! Sir, the circum- 
stances under which that letter was prepared and signed are 
themselves evidence which leads the mind to the conviction 
that that murder was perpetrated by men who were attending 

that meeting. 

During this morning I was discussing the rights of martial 
law, strictly considered ; but I wish this court distinctly to un- 
derstand that no man has a greater repugnance than I have to 
martial law and to arresting men against whom there was not 
a probable cause o# gnilt. I say in strict law the respondent 
had a ri-dit to arrest all men in the counties of Alamance and 
< 'a.- well ; but it was a mistake, in my judgment, to arrest any 
man against whom there was not strong probable cause oi com- 
plicity in this conspiracy. And, senators, I have no apology 
for the cruelty which has been proved to have been exercised 
upon some of the prisoners by one of the officers of Kirk's regi- 
ment, indeed, no man can denounce it in terms more severely 
than myself. But let us look at the case and observe how the 
learned counsel | Mr. Graham] regards it. Gentlemen of high 
standing, of great respectability and who were clad in purple 
and fine linen and who fared sumptuously every day, have been 
taken into custody and detained by the military for a few 
weeks. But have any of them been murdered or shot or even 
whipped '. They have been deprived of their liberties for a 
time, and that is all But when white citizens of Alamance and 
< , < , !l go to the houses of the colored man and of even hum 
Me white men, and drag them from their beds, hang them by 
their neckl until dead, or drown them in mill ponds, or whip 
them on their naked backs; there is nothing in that to excite 
the virnous indignation o! counsel ! 

In view ot this fact. 1 ask how can they denounce the respon- 
dent because he happened to apprehend a few of these gen- 
tlemen to prevent the entire extinguishment of the black race 
in the counties of Alamance and Caswell ? I think I see num- 
bera of men in this senate here wdio would not have dilly-dal- 


lyed with this matter as this respondent did. They would 
have crashed them out at once with the military ; they would 
not have waited and waited and waited ; they would not have 
issued proclamation after proclamation ; they would not have 
written letters to distinguished opponents in the different 
counties and invited them to go abroad and endeavor to stop 
this vile business, that he might be relieved of the necessity 
of declaring these counties in a state of insurrection. With 
them, one proclamation would have bee i sufficient, and if 
another death, another outrage occurred after that, which was 
left unpunished, they would have called in the military and 
they would have stopped the course of outrage and wrong at 

I assert that the respondent was in great error in that he 
did not proceed long before he did to call in the military and 
put a stop to this carnival of murder and outrage. That is 
my judgment, senators ; I may be mistaken. 

Let me say a word or two upon the articles of impeachment. 
The first and second articles refer to declaring the counties of 
Alamance and Caswell in a state of insurrection, and of ap- 
prehending certain individuals without warrant. If Ave have 
succeeded in establishing the position that these localities 
have been declared in a state of insurrection, then these 
charges all fall to the ground — they cannot be maintained at 
all, no matter how innocent, no matter how unoffending any 
one of these men who were arrested may have been in his 
conduct — so far as regards this conspiracy. 

Passing for the moment the most difficult charge, the arrest 
of Josiah Turner, Jr., who desired to be arrested and labored 
with all his might to procure his arrest, I come to the charges 
of appropriating money to pay the troops, of violating the 
injunction of Judge Mitchell, in so doing, and will reply to 
them. Sir, there are plenty of senators here, lawyers of the 
highest standing, who know that the judiciary cannot enjoin 
the executive — the judiciary possess no such power. If that 


were not so, the wheels of government woiim" soon be clogged. 
Nobody doubts the law that the judiciary cannot enjoin the 
executive, provided the process' was issued against him person- 
all}-, and that he would not be amenable for disobeyance. This 
being so, I ask senators how the respondent can be guilt of any 
offence for disobeying an injunction that was granted against 
other officers of the government? Nothing is dearer to my 
mind than that these charges must fail ? 

But there is this other and most difficult case of all — that of 
the arrest of Josiah Turner, Jr., a man who labored for months 
to have have himself arrested by the respondent, and who 
at last succeeded. Is not that a grave offence ! Is it not 
worthy of an impeachment against the governor and spending 
the money of the state to endeavor to convict the respondent 
for placing Mr. Turner in a position he sought more than any 
thing else in the world 1 Let me call the attention of the 
senators to what took place here upon his examination. He 
was asked it there was not an unkind feeling between him and 
the respondent, and what, pray, did he reply, " My feelings are 
"sir-has you might suppose would exist between a good man 
and bad man.'' He went out of his way three times to prove 
that he was a pious and holy man, and that the respondent was 
a vile, sinner ! and held himself as a man whose example was 
to be followed by all <;ood men ! 

"1 bloHs an' praise thy matchless might; 
Where thousand* thai were left in night, 
Thai I »iii here afore thy si^-iit, 

For gifts Mini grace, 
A burntn' an 1 a sfatnin light 

To a' this plaee. 

Yes, I am here a chosen sample 

To show thy grace La greal and ample, 

I'm here a pillar in thy temple, 

Strong as a rock, 
A guide, a bliehleT an' example 

To a' thy dock. [Laughter. 


Sir, everybody knew that Mr. Turner was this sort of a man, 
and he need not have gone out of his way to prove what a holy 
and virtuous person he was. Every man who has read the 
Sentinel since he became its editor knew that he was a shining 
example of the beauty of holiness and that he had consecrated 
his talents and his energies to elevating the character of our 
judiciary and all our state officers ! He knew the importance 
of his powers in this regard, and I am glad that these military 
men, with all their faults, had an eye to " the eternal fitness of 
" things." They found in the prison at Alamance a poor 
wretch condemned to death, who needed ghostly advice, and 
instead of sending the cursing parson — Yates — to administer 
unto his spiritual necessities, they sent this good, pious and 
holy and meek man, Josiah Turner, Jr., [laughter] to perform 
that spiritual office, and I am suprised that he is not grateful 
for having accorded to him that exalted privilege. [Laughter.] 
Yes, sir, and when he returned to Hillsboro' and Raleigh his 
Kuklux friends offered incense unto his name and consented to 
become beasts of burden and to carry him in a triumphal pre- 
cession about the streets. Surely Jie should make no complaint. 
Wouldn't it be a farce for grave senators to try the governor 
for doing to Turner of all things earthly what Turner most 
desired ? [Laughter.] That is all I have to say about that 

I was about to ask what hope have I for the acquittal of my 
client ? I have practiced law a long time, and I always have 
been able to ascertain that if the case was one in which par- 
ties were divided politically I felt sure I could acquit him, if 
every juryman was of the opposite party to my client, and had 
made up and expressed his opinion of the guilt of the accused. 
But thank God we have not got a common jury ; we have got 
men here of the highest integrity, men who can appreciate tes- 
timony, and I entertain the opinion honestly that if what has 
been proved here before this court had been fully known and 
comprehended by the house of representatives before these 
articles of imeachment were prepared, they never dwould have 


preferred them ; and I entertain the further opinion that sena- 
tors and commoners are utterly astounded at the developments 
we have made. We have not been permitted to verify our an- 
swer in respect to everything we said about these vile organ- 
izations and about indictments not being found, and about no- 
body's being punished in various counties in the State — all that 
has been excluded. I thought such proof was competent, and 
I have come to the conclusion that senators have voted to 
exclude that testimony because they had made up their minds to 
acquit my client, and they wanted no more of these develop- 
ments to so forth to the countrv. I know of no other princi- 
pie upon which it could have been excluded. I then have 
hope, and even a belief, that this court will acquit the respon- 
dent, and I would be glad that they might immortalize them- 
selves by such action. I say here that a unanimous verdict ot 
acquittal would immortalize every man in this senate. This 
case will not cease to occupy the public mind when the verdict 
i- pronounced. When all this feverish excitement, this bitter 
party feeling which pervades and has pervaded the country for 
the last several years — when this excitement has passed away, 
and the second-sober thought comes upon the country, and the 
people read ot these numberless outrages that have been per- 
petrated upon the humble white and colored men, and for 
which there has not been a solitary punishment; when they 
read the vote of acquittal given by any senator, they will say, 
" Well done, good and faithful servant." They may not say 
that next week or the week after, but as surely as we are here 
to-night, the second sober-thought will come, and every man 
that votes acquittal will feel that he has performed a duty for 
which the country ought to be grateful — for whieh I entertain 
not a doubt it will be. 

Let me, before I close, call your attention for a moment to 
the prosecution ot President Johnson. I ask senators, I ask 
democratic and conservative senators, did you approve of the 
action of the men who voted for his conviction? Is there a 
man of von who did not censure the course of the republican 


members of congress ? Is there a senator here who did not 
say of tliepnre and upright Fessenden, and of all the other mem- 
bers ot the republican party who voted for his acquittal, M Well 
done, well done ; we give you credit for your vote P I may 
be mistaken. I entertain the judgment that that was the opin- 
ion of every democratic member of this senate. Mr. Fessen- 
dcr. is "gone to that bourne whence no traveller returns," 
but he has left a record for purity and uprightness that any 
man might envy. lie dared to stand up like a man, and to 
resist the illegal and improper demands of bitter partizans. 
He has already srot the meed of credit for his action ; and I 
hesitate not to say that the day will come that every man who 
vote3 for the conviction of the respondent will have 
occasion to regret it. In all this I may be mistaken, but that 
is my judgment. 

I desire, Mr. Chief Justice and Senators, frankly and can- 
didly to express here the sentiments I entertain. I come here 
as no partizan, I come here not as the friend or partizan of the 
respondent. That he and I have usually been at points upon 
the great questions before the country 'is probably known to every 
senator here. I voted against the present constitution, and ad- 
vised others to do it. I admit that it has many noble features, but 
some of its provisions are very unsuited, in my judgment, to 
the people of North Carolina. I have never approved it, and if 
I were a member of the legislature to-day (and I always said 
so) I would vote for an unrestricted convention to reframe our 
organic law. I am here, as I said before, to express my genuine 
thoughts and views upon the points in this case. I know that 
my days are but few. I am near the foot of the hill. I l:ok 
about me and see the great men of North Carolina, with whom 
I have been associated at the bar for many years, have all passed 
that bourne from which no traveller returns. It is with these 
sad memories crowding upon me, and with a deep sense of the 
responsibility resting upon me, that I have addressed this 
learned high court ot impeachment on behalf ol the respondent, 
and urged that in my judgment the cause of truth and justice 


requires his acquittal at your hands ot the charges preferred 
against him. The question of the legality of the organization 
of the troops embodied by the respondent, (about which I have 
no doubt,) I leave to my learned associate, who is to follow, as 
I am too much exhausted to continue the argument longer to- 
night, and I am unwilling to trespass longer upon the time of 
the court ; and I am unwilling to ask for further indulgence. 
I must conclude with the full belief that the court will not 
hesitate, after hearing my learned associate and the counsel 
who is to follow him, to acquit the respondent of all the 
charges preferred against him. 



Sexate Chamber, March ISth, IS 71. 

The COURT met at 11 o'clock, pursuant to adjournment, 
Honorable R. M. Pearson, Chief Justice of the Supreme Court, 
in the chair. 

The proceedings were opened by proclamation made in due 
form by the doorkeeper. 

The CLERK proceeded to call the roll of senators, when 
the following gentlemen were found to be present : 

Messrs. Adams, Albright, Battle, Bellamy, Brogden, Brown, 
Cook, Council, Cowles, Crowell, Currie, Dargan, Edwards, 
Eppes, Fleming, Gilmer, Graham of Alamance, Graham of 
Orange, Hawkins, Hyman, Jones. King, Latham, Ledbetter, 
Linney, Love, Mauney, McClammy, McCotter, Merrimon, 
Moore, Norment, Olds, Price, Bobbins of Davidson, Robbins 
of Rowan, Skinner, Speed, Troy, Waddell, Warren, Whiteside 
and Worth— 43. 

Mr. SMITH, of counsel for the respondent, proceeded to 
address the court as follows : 

Me. Chief Justic a a>"d Senators : In the arrangement 
made among the counsel for respondent, it has been assigned 
to me to perform the last office in presenting the merits of his 
cause to the consideration of the senate. The case is in many 
respects one of peculiar features. For the first time in the 
history of our state has a governor been charged with the 
high crimes imputed to the respondent, and North Carolina, 
proverbial for the honesty and integrity of her people, in pub- 
lic and in private life, if she strikes him down, will be the first 
among all the states to give an example of official profligacy. 
The trial itself has been protracted over many weeks, and the 
senate, with great patience, has heard the evidence adduced 
on either side and now to be passed upon and weighed in de- 
termining the question of the respondent's guilt. And towards 


the respondent himself, his counsel stand in somewhat pecu- 
liar relations. He has selected and summoned us from the 
pursuits of private life, most of us his life-long- political oppo- 
nents, to present to a tribunal, largely of our own political 
faith, the grounds upon which his acquittal of the charges is 
asked, Iu this he has exhibited a confidence in the integrity 
of our profession which his counsel will endeavour honorably 
to meet. It will be our purpose, as it has been heretofore, to 
present the respondent's case in all its legal bearings, with a 
view of contributing, as far as we can by argument, towards, 
a just and righteous decision of the issues involved. 

The constitution originally adopted at Halifax provided for 
trial of impeachment before a different tribunal, and required 
the concurrent action o'( the two houses of the general assembly 
to, frame and pass articles of impeachment, c.r the prosecution 
of offenders on presentment of a grand jury of a court of su- 
preme jurisdiction iu the state ; and the only offences for which 
an officer could be impeached are therein declared to be for 
4 ' violating any payt of this constitution, maladministration 
" or corruption." The constitutional convention of 1835 re- 
affimed (article III, section, 1,) those provisions, of the okl con- 
stitution which define and declare what are impeachable acts — - 
but changed the manner of proceeding against offending officers, 
and directed that the house shall "have- the sole power of 
impeachment," and the senate " the sole power to try all im- 
peachments." The present constitution retains the machinery 
for the finding and trial of impeachments, but omits entirely 
the provisions declaring what shall be an impeachable act o>iul 
to make any substitute therefor. We were left, therefore, when 
this constitution went into effect, without any law on the sub- 
ject, the former having been abrogated and annulled. This 
defect, it has been proposed to remedy by an enactment of the 
general assembly, of April 1<>, 1969, winch in section 1G speci- 
fies six distinct matters for which an officer may be impeached, 
^o. wit : 


"1. Corruption or other misconduct in his official capacity. 

" 2. Habitual drunkenness. 

" 3. Intoxication while engaged in the exercise of his office. 

" -i. Drunkenness in any public place. 

" 5. Mental or physical incompetence to discharge the duties 
" of his office. 

" 6. Any criminal matter, the conviction whereof would tend 
" to bring his office into public contempt." 

It might admit of question, if we were disposed to rest upon 
our extreme rights, whether the gerferal assembly has the 
power, under the constitution of the United States, to annex 
conditions of forfeiture to an office which were not attached to 
it when it was created, nor when the respondent entered upon 
the discharge of its duties. It certainly seems to be an abridg- 
ment of the tenure of an office to annex conditions, by which it 
may be forfeited and determined, after its creation, by acts 
which before worked out no such result. But for the purposes 
of this argument, I shall not deny that there is and must be, 
independently of legislation, an impeachable offence. The 
provision of the machinery for its trial, necessarily involves 
something to be tried, and I look in the constitution to ascer- 
tain what is the act, what the circumstances and conditions upon 
which an officer, aside from positive law, and chosen before its. 
enactment, can be impeached. The punishment prescribed is 
expulsion from office — and it may be, also, permanent incapaci- 
ty to hold office in the state. This necessarily presupposes 
some official act — something done or omitted, connected with 
the discharge of official duty, by which the incumbent has 
shown himself to be unfit longer to be trusted with the office, 
and his removal becomes a public necessity ; and this view is 
fortified by the fact that the party while punished by impeach- 
ment with the deprivation of office, is still amenable to the 
criminal law, as if no such trial had taken place. It must, 
therefore, not be a mere crime capable of redress before the 
criminal courts of the state. It may have the elements ot 
crime, but the act, as we submit, must be one of official de 


pravity — official corruption — official dishonesty — tlio exercise 
through improper motives of powers not conferred, or the abuse 
and misuse of powers that are conferred ; and it is in this view 
that we think the only material aspect in which the case can 
he presented to the consideration of the senate, arises upon the 
Bret .of the series of offences designated in the statute as im- 
peachable, and that is "corruption or other misconduct in his 
official capacity" 

The managers, as I understand them, rely on that, and rely 
on no other provision of the statute, for the conviction of the 
respondent. We propose, then, to narrow the discussion to 
ih<>se acts of the respondent which are essentially and properly 

fiat — which are done by virtue of the office which he 
holds, as distinguished from all others, — acts' which under the 
constitution and according to its requirements unfit the incum- 

it thereafter to hold the office or to be trusted with the exer- 

• of its functions. 

What, then, let us enquire,, is essential to the guilt of the 

sased \ It is not every breach of official obligation and duty ; 
,'t is not every assumption of unauthorized power; it is not 

i ; excess of power conferred. These may have been done 
or omitted, and yet the officer not be liable to impeachment. 
if the object in view lie, and senators so believe upon the 
i vidence, the preservation of greater interests or the defence 

greater rights, then although he be amenable to criminal 
prosecution, we shall insist that he is not amenable, tor the 

irge in this form of procedure. We have abundant examples 

wing the Correctness of this general view of the subject. 

latora need scarcely to be reminded oi the numerous acts of 
the president of the United States, in excess of Ins rightful 

oithority. committed at the beginning of the late civil war, for 

which he was not called to account, and never would have been 

held responsible to public justice, whatever may have been the 

lie Of the impending struggle and whatever party may have 

seeded to the ascendancy upon its close. The ywtipes 

which prompted the exercise of the power would have furnished 


full and ample justification, before any tribunal called upon to 
determine the question of his official guilt. I cannot better 
illustrate this than by referring to the numerous instances, 
scattered over the history of the United States in the earlier 
states of that terrible sectional conflict, of unlawful arrest of 
persons in parts of the country, where the civil authority was 
in full exercise of all its powers — the instances in which men 
were seized and deprived of their liberty, and, when attempted 
to be released from unlawful restraint under judicial proceed- 
ings, were still held in custody by direction of the president. 
It is fresh in the minds of all that a large number of the mem- 
bers of the general assembly of Maryland, on their return 
home from Frederick, after adjournment, were arrested by mili- 
tary orders, carried out of the state and imprisoned in one of 
the northern forts, in a state where the privileges of the writ of 
habeas corpus had not been suspended, and was at the 
time in full force and activity. We cannot have forgotten 
the first case, the arrest and detention of Merryman, a 
citizen of Baltimore, in Fort McITenry, which called public 
attention to the conflict between the law and arms. He was 
held in custody by the military authorities and the civil power 
in the hands of the marshal resisted, notwithstanding the 
solemn decision of the chief justice of the United States, that 
the writ of habeas corpus was not suspended, and could not be 
except by an act of the congress of the United States ; and he 
was so held in custody because the president had authorized 
and sanctioned the detention, and there was no redress under 
the law. 

Xot long after, afa attorney who sued out a writ of habeas 
corpus from a judge in the District of Columbia, was himself 
arrested on account of this professional act; and the dis- 
tinguished judge, (Merrick) who had granted the writ, on his 
return home after a short absence, found his house surrounded 
by a squad of soldiers and refused in consequence of duress, to 
occupy his seat on the bench with his associate justices for the 
further trial of the cause. These are some of the repeated in- 


8tances of unlawful arrest, extending over pages after pages of 
the annals of that period. And yet because of the exigency 
which then existed in public affairs and the magnitude of the 
approaching conflict of arms, no one ever supposed or suggested 
a prosecution of the president and his removal from office be- 
cause he exercised such extraordinary powers under such extra- 
ordinary circumstances. When President Lincoln in his mes- 
sage to the newly assembled congress, on the 4th of July, 1861, 
communicated to that body his conduct in relation to these 
various arrests, the language he employs is very emphatic and 
su^estive : 

" Soon after the first call for militia it was considered a duty 
" to authorize the commanding general, in proper cases accord- 
ing to his discretion, to suspend the privilege of the writ of 
" habeas corjms, or in other words, to arrest and detain without 
" resort to the ordinary processes and forms of law, such individ- 
" uals as he might deem, to be dangerous to the public safety. This 
" authority has been purposely exercised but very sparingly. 
'• Nevertheless, the legality and propriety of what has been 
" done under it, are questioned and the attention of the coun- 
" try has been called to the proposition that one who is sworn 
" ' to take care that the laws be faithfully executed, 7 should 
" not himself violate them. Of course some consideration 
•' was given to the question of power and propriety before 
"this matter was acted upon. The whole of the laws which 
" were required to be faithfully executed, were being resisted 
" and failing of execution in nearly one third of the states. 
'■ Must they be alloAved to finally fail of execution, even had 
" it been perfectly clear that by the use of the means necessary 
'• to their execution, some single law, made in such extreme 
" tenderness of the citizen's liberty, that practically it relieves 
* u more of the guilty than of the innocent, should to a very 
" limited extent be violated ? To state the question more 
" directly, are all the laws but one to go unexecuted and the 
" government itself to go to pieces, lest that one be violated ?" 

Soon after the meeting of that congress a bill was intvo- 



duced declaring the lawfulness of the acts of the president in 
his proclamations ot blockade of the ports of the southern 
states, in his suspension of the writ of habeas o&rpufy and in 
his arrest of citizens by military order and without the forms 
of law > and Senator Sherman while it was under debate de- 
clared, (I quote the substance of his remarks and not his 
words) : 

" I will vote for so much of this bill as asserts the right of 
" the president to declare the blockade, for that is a right of 
" war; but I will not vote thqt he has acted lawfully in sus- 
*' pending the writ of haheas corjym, for the congress of the 
" United States alone is competent to do this. And yet t 
" will say, if I had been in his place, I would have done just 
" as the president has done. I would have exercised the pow- 
" er that he exercised, and his justification must be found ill 
" the exigencies of the hour, and the pedis of the nation." 

And this, senators, is the proper rule aiike applicable in all 
cases of impeachment of public officers. You are not com- 
pelled, by an inexorable rule, because the executive has trans- 
gressed the constitutional limits which define the powers of 
his office ; you are not compelled, because he has claimed and 
used an authority not delegated to him, to depose him from 
office. It is your duty to enquire into the motives of his con- 
duct. Was it an honest effort to discharge his official respon- 
sibilities, and execute in good faith his public trusts? Did 
he act for the protection of the civil rights, and for the preser- 
vation of the liberties of the people of the state ? If such was 
his purpose, such the motive which prompted him to act in 
the manner in which he has acted, it would be the grossest 
injustice to deprive him of office and consign his name to in- 
famy and disgrace. It is difficult to find a punishment more 
severe to a high-toned and honorable man than degradation 
from office tor official misconduct ; and official misconduct is 
not predicated of an act, the offspring of an honest and sin- 
cere intention to use an office and exercise its powers for the 
common good and for the well-being of the whole community. 


What, then, constitutes an impeachable offence ? For what 
official act should the governor of a state be stripped of his 
robes of office, and forced from a public position into private 
life with all the obloquy attaching to the sentence? We are 
not left without guidance in the principles which have been 
settled by judicial decision in their application to officers 
charged with criminal offences, and which must in their na- 
ture apply equally to the highest executive officer of a state 
as to others. What is meant by " corruption or misconduct 
in one's official capacity" in the language of the statute? 

Now to constitute an offence punishable by indictment, in 
the case of any and all civil officers, it is necessary to charge, 
and on the trial to show a corrupt purpose accompanying 
the act. or a party cannot be convicted. For this there is 
abundant judicial authority and I will read a paragraph from 
Wharton's American Criminal Law, section 2522. 

" It is generally necessary to constitute the offence " (refer- 
ring to official misconduct) " that the motive should be jpr- 

And in section 2523, the principle is laid down that 

" In an indictment against an officer of justice for mitsbeJiav- 
" zor in office, it is necessary that an act imputed as misbehav- 
" ior, be distinctly and substantially charged to have been clone 
"with c orrup t, partial, m alicio us or i/mgwopep motives; and 
■" above all, with knowledge that it was wrgng, though there 
'* are no technical words, indispensably required, in which the 
u charge of corruption, partiality, &c, shall be made." 

There are many references made by the author, in support 
of the proposition enunciated in the text, with the citation 
of which I will not trouble the senate. But there is a case deci- 
ded in an adjoining state, reported in 2 Leigh's (Va.) Reports, 
709, .Jacobs and others m the Commonwealth, in which the 
principle of official responsibility is so plainly declared, that I 
shall be excused for calling to your attention the language 
employed by Judge Brockenbrough in delivering the opinion 
of the court : 


" What is the criminal fact with which it is proposed to 
" charge these justices ? Is it that they formed a court (with 
" the aid of two others alleged to be innocent) on the second 
" day of the November term, etc., at which they ordered it to 
" be entered of record, that Burks, who was nominated to them 
" by the high sheriff as his deputy, was a man of honesty, 
" probity and good demeanor, and permitted him to qualify as 
" deputy ? This of itself, so far from being a crime, was, as the 
" law stood at that day, a legal and valid act." And he pro- 
ceeds to say : 

" But if they do not entertain that opinion, or if they know 
" that he is not a man of honesty, &c, and certify that he is, 
" in that falsehood, in that corrupt conduct consists their or- 
" fence, their official misbehavior. The sdeQtter is a material 
" part of the substance of this crime, of which there is no di* 
" rect allegation in this indictment, and it cannot be supplied 
" by any implication or intendment whatever." 

lie then sums up the whole doctrine in these words : 

" It is a well established principle that a judicial officer cannot 
" be prosecuted criminally for any judgment rendered by him, 
" however illegal, unless rendered from some motive of jnjdio, 
" partia lity or corruption. Much less can such a prosecution 
" be carried on where the act done is within the pale of his 
"lawful authority, without such cyvvupt invt^Qe" 

We have in our own courts the same principle settled in the 
case of the State vs. Zachary, reported at page 432 of Busbee's 
Law Rep., wherein Judge Nash says : 

" Does the giving the judgment, in the absence of the parties 
" and without their knowledge, in itself constitute eorrvption ? 
" Certainly not ; because it might have been in good faith ; 
" and, if so, an indictment cannot be supported. It is the 
" conception, donated with the act, the law" seeks to punish 
"criminally. Cunningham vs. Pilliard, 4 D. and B., 351. To 
" further show the corrupt motive of the defendant, the indict- 
" merit charges thaTTTe sold the judgment to one Allman for 
*' a valuable consideration, It is certainly a misdemeanor in 


"office for a justice of the peace to sell or transfer a judgment 
"given by himself or any other magistrate. The law makes 
" the magistrate who gives a judgment its custodian. He 
" is bound officially to keep in his possession both the war- 
"rant and judgment, and the evidence of the debt, — in other 
" words all these papers are in the custody of the law. It was 
" proper, therefore, that such charge or statement should appear 
" upon the face of the indictment, and in fact it constituted the 
" gist of the offence said to be perpetrated by the defendant ; 
" and the state was bound to prove it." 

The result of our examination of the authorities, then, is to 
establish the principle that official misconduct necessarily 
involves corruption. There must be the corry pt intent — there 
must be a quilU i purpose, without which whatever may be the 
character of the act done by one in his official capacity, it is 
not the proper subject of criminal prosecution and punishment, 
neither in this nor in any other form of criminal procedure 
known to the law. To make a case of guilt, demanding judg- 
ment against the respondent, it must be charged, and on the 
trial it must be proved to the reasonable satisfaction of the 
court, that his official conduct in the matters we are reviewing 
and upon which, in your judgment of them, you are to settle 
the question whether he shall retain, or be expelled from his 
office, was prompted by, and associated with, a corrupt intent. 
If this point is made satisfactory to the senate, and accepted as 
a correct principle— and if, senators, you agreed with us upon 
the truth of the general proposition, our next step in the 
progress of the argument will be, to ascertain what are the cir- 
cumstances preceding and attending the action of the executive, 
now under consideration, and see what light they shed upon 
the motives prompting to such action. 

Let me then say that a series of outrages, extending through 
many months after the passage of the act which made it a crime 
for men to go in disguise, and especially numerous during the 
fall of LSC9, detailed by the witnesses and fresh in the minds 
of the members of this body, caused the governor, in a message 


to the general assembly, to invite their attention to the con- 
dition of public affairs, and to the necessity of making some 
provisions, beyond those contained in existing laws, to repress 
these disorders and put an end to crime and violence. You 
will remember that we read in evidence his message at the 
assembling of the legislature in the fall of 1869, advising you 
to make some enactment to remedy the evils complained of and 
which pervaded so many counties of the state. What was the 
response to the recommendation i It is found in the intro- 
duction and passage of the bill now known as the " ShofFner 
act" in January, 1870. This measure was introduced into the 
senate and passed that body on the same day. It was sent to 
the other house without delay, and I desire to call the attention 
of senators to some of the proceedings attending its passage by 
that body for the purpose of showing — with what purpose it 
was passed,— what evil it was intended to redress, — and what 
were the powers it proposed to confer upon the executive. The 
bill passed the senate on its second reading by a vote of 28 to 
8 ; and on its third reading by a vote of 28 to 'J, on the lGth 
day of December, 1800. 

We have some instructive information in looking at the 
proceedings which took place in the house, when the bill 
came up fur consideration there, and which will be found on 
page 185 of the house journal. Mr. Malone moved to amend 
section 1 by striking out the words " declare such counties 
" in a state of insurrection." " Mr. Argo moved a reference 
"of the whole matter to a special committee of five, (to be 
" appointed by the speaker,) whose duty it shall be to examine 
"into the condition of those counties, in which insurrection is 
u alleged to exist." Upon the motion of Mr. Argo, the vote 
was 37 in the affirmative and G9 in the negative. On the 
amendment offered by Mr. Malon^, to .strike from the bill that 
part of it which authorized the governor to declare a county 
in insurrection, the vote was yeas 47, naves 61, thus showing 
that the house of representatives intended to retain tint pro- 
vision in the bill, and give to the words their full force and 


effect, after, as we must suppose, a discussion of their import 
and effect. After the bill had been amended by striking out 
the clause relating- to the suspension of the writ of habeas 
c&rpus, Mr. Pou, a member, offered a substitute for the bill as 
amended, and I wish especially to call the attention of senators 
to a portion of the first section ot the proposed substitute. 
That section is in these words : 

" That the governor is hereby authorized and empowered, 
" whenever, in his judgment, the civil authorities in any 
" county are unable to protect its citizens in the enjoyment 
" of life, liberty and property, to declare such county to be in 
11 a state of insurrection, and to call into active service the 
•• militia of the state, to such an extent as may be necessary 
" to suppress such insurrection: provided, that the military, 
" when so called into service, shall act in support of, and in 
v strict subordination to the civilpower." 

lbre we have a substitute, offered in place of the original 
bill, in express terms declaring that, in the employment and 
use (,| a military force, it should always be " in strict subordi- 
" nation to the civil power," and in aid oi its process. The 
substitute was voted down, and the bill passed as it came 
from the senate so far as this feature of it is concerned. The 
vote rejecting the amendment is not given, but the bill finally 
passed by a vote of 63 to I 1 *. The few amendments made in 
the house were concurred in by the senate and the bill became 
a law as we now find it upon the statute book. 

Now, senators, here is famished clear and incontrovertible 
evidence, whatever may be thought of the legal right of the 
general assembly to pass the act, they did not intend, in 
making the enactment, that the military, should be used only 
in subordination to the civil authority. They expressly voted 
down a proposition which declared, positively and unequivo- 
cally, that relation of the military to the civil power, and we 
arc not left in doubt, that the general assembly, in passing 
the act to licet the pressing difficulties of the case, did not 
intend that the power to call into active service the militia of 


the state, conferred upon the governor, was under all circum- 
stances to be exercised in aid of, and subordinate to, the civil 
authority. Let me not be misunderstood. I am not discus- 
sing the constitutionality, nor the policy of this legislation. If 
it were permitted me to express an opinion, I should say it 
was a very unwise and impolitic measure, at least ; but I am 
enquiring now into its proper construction and meaning, and 
for what objects and with what view, it was enacted. "What 
did those members who voted for it intend to accomplish — 
what was their understanding of its meaning and import I 
And I have referred to the proviso in the section of the pro- 
posed amendment to show, beyond all question, right or 
wrong — constitutional or unconstitutional — the act was passed 
with the clear and distinct understanding, manifested by the 
votes of the house, that it clothed the governor with power 
to call out and use military force, not in subordination to civil 
process, but independently for the repression of violence and 
wrong. It delegates to him the right to use such force in aid 
of the civil authority, but it is not restricted to that use. The 
attempt to impose such restriction was voted down. The bill 
was passed with the same provision which was in it upon its 
introduction. The house refused to substitute in place of the 
words " declare it in a state of insurrection " the words " declare 
" it in a state of disorder," upon a motion ot Mr. Malone at a 
later stage in the progress of the bill. And thus we have the 
clear, positive and unequivocal testimony of the general as- 
sembly that adopted the measure, as to what was its purpose 
and what would be its effect. I have before me the discus- 
sion which took place in the house when the bill was under 
consideration, and with the permission of the senate will read 
some of the remarks made by Mr. Malone, a distinguished 
member of that body and of the bar, on the amendment offered 
by him. The journal ot the house does not, it is proper I 
should say, accord precisely with this report. I read from the 
Standard of January 15th, its report of the proceedings which 
took place in the house on the day preceding : 


" Mr. Malone moved to strike out in the first section the 
" words which authorize the governor to declare a county in 
" a state of insurrection, and to change the word 'insurrection' 
"to 'disorder.'" 

He is represented on that occasion to have said : 

" He (Mr. Malone) declared that the conservatives did not 
" endorse the reported outrages of the kuklux. He contended 
" that the present law was amply sufficient to protect citizens 
" in their riffhts. A state ot insurrection meant a state of war — 
' : that war existed between the insurrectionary counties and the 
" remaining counties of the state. He cited as an example the 
" contest between the United States and the late insurrection- 
" ary states. The declaration of the existence of a state of in- 
" surrection implied that a system of passports would be en- 
" forced, for instance, that no man could pass from Chatham 
" county to another county without having a passport from 
" Governor Holden's militia, or from the insurgent portion of 
" the country, another evil M-ould be that men, as alleged by a 
" senator, would be tried and sentenced by a drum-head court- 
" martial, rather than by the ordinary courts." 

I refer to this speech for the evidence it affords of the legal 
construction put on the bill during the progress of its passage 
through the house by a leading member, and to show that it 
was passed with full knowledge of its operation and effect and 
of the extraordinary powers with which it undertook to invest 
the governor ; and so strongly was Mr. Malone's opposition to 
the bill on this account pressed, that he declared that under its 
provisions a state of war might exist in a county and its people 
become subject to all the rigors of martial law, including trial 
and sentence by military tribunals, and their execution by mil- 
itary authority. 

And now let us consider what was the measure of relief in- 
tended by the two houses, in their joint action in adopting the 
statute, and what does the statute authorize and require of the 
governor to be done under it ? To ascertain these we must 


examine the provisions of the law and give to them a fair and 
just interpretation. 

By the first section the governor is authorized and empowered 
" whenever in his judgement the civil authorities in any county 
" are unable to protect its citizens in the enjoyment of life and 
"property to declare such county to be in a state of insurrec- 
" tion and to call into active service the militia of the state 
" to such an extent as may become necessary to suppress such 
" insurrection." 

"What had rendered life and property insecure ? How had 
the civil authority been rendered incapable of affording protec- 
tion to both \ What was the evil to be remedied, what condi- 
tion of affairs was to be deemed and declared in a state of insur- 
rection \ 

Most manifestly the statute had in view the outrages which 
we have been ena'a^ed in investigating, committed in the conn- 
ties of Alamance and Caswell, and others of a similar kind per- 
petrated elsewhere in the state. It was intended to arrest this 
course of lawlessness and crime, and, because judicial process 
had proved inadequate to afford protection, it was thought an 
extreme remedy had become necessary. It was therefore to 
meet the very condition of things which has been disclosed by 
the evidence in this trial. 

Whenever the governor in the aeercise of his own judgment 
upon the facts, came to the conclusion that the civil authority 
was really and truly unable to protect life and property, then 
was he not only authorized, but, as I shall show, it became his 
duty, to declare the county in insurrection, and he would have 
rendered himself liable to impeachment, before this very court, 
and removal from office, had he remained idle, and, seeing that 
property and life were unsafe, and that protection could not bo 
obtained for cither under the ordinary forms of law — the very 
contingency contemplated in the act — had failed to use the power 
conferred on him for the protection of both. 

I have before me, senators, a large number of references 
which can be cited to support tho principle, that whenever a 


power is conferred for the public good, it involves the duty of 
exercising it, whenever the contingency arises to call it into 
activity. The point is so distinctly presented in an opinion pro- 
nounced by the late Chancellor Kent, in a case reported in 
Johnson's Reports, that I will read a part of the opinion to the 
senate : 

" Lord Hardwicke observed in Stamper vs. Miller (3 Akt. 
" 212) that the word ' shall J or ' may' when applied to private 
" trusts, leaves an election to the trustees which is not the case 
" when the words are used in acts of parliament. And in 
" respect to statutes, the rule of construction seemed to be that 
" the word ' maif means 'must' or 'shall,' only in cases when 
"'• the public interests and rights are concerned, and when the 
" public or third persons have a claim, de jure, that the power 
" should be exercised. Thus it was held in Alderman Black- 
"welPs case (1 Vera. 152) that the chancellor was bound to 
k> grant a commission of bankruptcy, on due application and 
"proof, though the words of the statute were that he may 
" grant. The creditors had an interest in the application of the 
' l power. So, in the case of the King vs. Barlow, as it is re- 
" ported in Salkeld (tor in Carihen the distinction is not 
"noticed) the K. 13. construed the words, shall and may as 
"being mandatory "where the statute directs the doing of a 
"thing for the sake of justice, or the public good." In that 
" ease, (2 Salk. 609, Carth. 293) the church wardens were in- 
" dieted for not making a rate ot assessment, under the statute 
" of 1 1 I 'ar. II, chap. 1 2, sec. IS, for the reimbursement of some 
"constables* The statute said they "shall have power and 
"authority to make a rate," and the statute was construed per- 
" emptor;,-, and the constables had as interest in the exercise of 
•' the power, The court observed in that case, that the statute 
"23 II. VJ, said that the sheriff may take bail, which was 
" construed he shall, A similar decision was made in the 
"caseol the Ki/ny vs. the inhahtUurfs of Derby, (Skinner, 3 70,) 
" where it was said, that may, in the case ot a public officer, 
"was tantamount to shall." 1 So, when the Shoffner act in the 


contingency contemplated authorized the governor to declare a 
county in a state of insurrection and to use military force with 
the view ot correcting and putting a stop to those outrages, it in 
fact, and in truth conveyed a command which he was just as much 
bound to obey as he was to discharge any other official duty, 
provided that state of facts existed in his judgment which the 
statute contemplated when it gave him the authority. If he 
really believed, if his honest judgment was, when he issued 
the proclamation of March 9th, that life and property were not 
safe in the county of Alamance, and that the civil authority from 
whatever cause was unable to protect both, then I say he would 
have been liable to be impeached had he failed to use that 
extraordinary power conferred upon him to suppress the evil 
and afford the protection intended by the act. And certainly 
if this be so, he cannot be held criminally liable for using the 
power in good faith with a view of executing its commands 
and making practically effective the remedy it provides for 
repression of violence and wrong. 

Xow, senators, this is aside from the question whether there 
was, in fact, in Alamance county, when the proclamation was 
issued, an open and forcible resistance to law. What is insur- 
rection and whether it existed in that county, according to the 
legal and proper definition of the word, are not questions now 
to be determined. The general assembly has undertaken to 
confer upon the governor the right to decide the fact, and to 
declare that state of things in which the judicial power prm s 
■Hself incompetent to afford relief, to he a siateof insurrection 
for the purpose of bringing into activity the military arm of 
government, and by its agency to give the protection which 
otherwise could not be given at all. If, therefore, as we have 
insisted in a previous stage of the trial, the respondent really 
and truly believed to exist those tacts, to which the statute was 
designed to apply, and with a conscientious conviction of the u, 
issued his proclamation, to punish him by degradation from 
office for his act, would be a tyranny without precedent in the 
iinnals of criminal jurisprudence. It is altogether .apart from 


the legitimate objects of the discussion to pause and enquire, as 
the managers and their counsel have done, into the nature and 
qualities of those offences which in the law hooks are denomi- 
nated treason, sedition, insurrection or riot, respectively, and 
what arc their constituent elements. Such questions are not 
pertinent to the issue depending before the court. Controversies 
as to the proper meaning of these terms, and the facts of 
which they consist might aris*>, if, as legislators, we were con- 
ring the ;'•'■'<'!/ or une&mtit'utifmality of the act, but they 
are wholly irrelevant when the statute is unambiguous in its 
meaning — when its terms are clear and distinct, and when 
with or without constitutional sanction it plainly appears that 
the respondent, in fact and in truth, has exercised the power, 
and only the power, which the statute confers. 

The governor has authority, under the constitution and in 
the absence of special enabling legislation, to call into service 
the militia " to repel invasion, and to suppress insurrection, 
•• and riot." In this regard he is clothed with the powers 
which under the constitution of the United States are delega- 
ted to and divided between, the president and congress. lie 
may put a military force in motion to overcome insurrection or 
riot under a plain provision ol the constitution of the state, 
n quires, for this purpose, no legislative enactment. 
The fact of the passage of the Shoffner act itself implies an 
nt to confer upon the governor something more than he 
eady possessed, a larger and more effective power, and its 
isideration involves, not the competency of the general 
uihly to bestow the powers, — not the validity or expediency 
of the legislation, — but its fair and reasonable interpretation, 
, the extent and limit of the authority it undertakes to 

It might admit of serious doubt, if the point was directly 

-ented, whether the legislature has capacity under theconsti- 

tution to delegate to an executive officer the large discretion 

.uid extraordinary powers that are given the respondent in 


this act. But the point is not before us and I shall not enter 
into its discussion. 

I beg your attention, senators, for a brief space, to the con- 
sequences of a doctrine which makes an officer responsible, 
criminally, for yielding obedience to the requirements of a 
statute and for using a power which it confers, on the ground 
that the statute may be itself in violation of the constitution. 
My associate, [Mr. Boyden] in his speech yesterday, referred to 
a resolution introduced into the senate at its present session by 
one of its most prominent members, now its presiding officer, 
in which is asserted, in broad and comprehensive terms, and 
beyond the limits to which I am prepared to give my 
assent, but with great force of expression, the doctrine that an 
executive officer, such as was the respondent in executing the 
Shofther law, was bound, except in a very clear and palpable 
case, to. obey and execute the requirements of every enactment 
of the legislature, and not to pass judgment upon its constitut- 
ionality ; that there was another department of government 
to which was committed the duty of deciding questions ot con 
stitutional and all other law ; that the governor was an execu- 
tive officer, bound to enforce all the laws of the state, and that 
lie had no right, under ordinary circumstances, and certainly 
not in a doubtful case, to suspend or resist the declared will ot 
the law-making power, because, in his judgment, the enact- 
ment was not warranted by the constitution, and was in excess 
of its authority. 

And would it not be very extraordinary, when both housea 
of the general assembly, then composed of different political 
elements from those which now have control, concurred with 
large majorities in passing the law, that the very same body 
should now proceed to impose an ignominious punishment 
upon the governor for obeying the legislative demands and 
giving effect to the expressed legislative will '. Still more pal- 
pable will this injustice appear when the senate recalls the fact, 
that unlike the former oath of office, the constitution now 
requires the governor to swear not only to support the con 


stitution of the United States and of North Carolina, but also 
" the laws of the United States and of the state of North Caro- 
' ; lina," (Art. 3, Sec. 4,) "before entering upon the duties of 
" his office.*' Nor is this an inconsiderate and insignificant 
change in the terms of the oath of office. When the conven- 
tion which passed the organic law was considering and per- 
fecting the article relating to the executive department, I find 
on page 148 of the journal the following entry: 

•■ Mr. Forkner moved to amend bv inserting after the word 
" constitution," the words "and laws." 

•• The amendment was adopted." 

< > ; ; the next day, February 7th, the same matter coming up, 
;i distinguished member of that, as he is ot this, body, [Mr. 
Graham,] moved to restore the article, as it stood before the 
amendment, and on page 100, the following proceeding is 
recorded : 

" Mr. Graham moved to strike out the word ; ' laws " in the 
•• 5th line. 

" The yeas and nays were demanded and the motion was lost 
" by the following vote." 

And then the vote is given, 42 voting in the affirmative and 
5 r in the negative. 

Thus it is shown that the change was deliberately made and 

as the purpose of the convention to impose other and 

further obligations upon the executive than were previously 

imposed. And this was the oath which the respondent was 

required to take, and did take, on his induction into office and 

ire he entered \\\uw\ its duties, and he then swore in the 

language of the constitution, " to support the constitution and 

" laws of the United States and of the state of North Caro- 

•• lina." It is true, that the " laws," which lie is to uphold and 

execute, are constitutional laws, and that enactments in conflict 

with the constitution, are not laws, within the meaning of the 

oath, and yet it must be conceded, senators, that this addition 

lie obligations ot the oath of office had and has a purpose ; 

that it was intended to have some etfect ; — to accomplish some 


end ; — and that end must have been that the executive should 
not fail, because of his doubts of the compatibility of the enact- 
ment of the law-making power with the constitution, to obey 
its commands and carry into effect its requirements, and that 
he should, notwithstanding his own doubts, in the absence of 
judicial decision, execute and enforce the express will, 
embodied in the form of law, of the law-making department 
of the government. 

If then, senators, I have been successful in maintaining the 
second proposition ; — to-wit, — that the respondent had the 
right, and that it was his duty, to give operation and effect to 
the act and to call out and to use military force, provided the 
exigency existed to which it applied; then we are brought to 
another enquiry arising in the course of the argument. For if 
we do satisfy the court that the respondent honestly exercised 
his judgment, there is an end of controversy so far as that part 
of the charge is concerned. And it can make no difference, in 
this aspect of the matter, whether you, or myself, or any other 
person, believe that the contingency had arisen on which the 
militia was to be called into active service. It is immaterial 
what may be our belief. The enquiry, and the only enquiry, to 
be made by the senate, is, was it the conviction and judgment. 
of the respondent ? Was it an honest opinion of his ? Did he 
really and in fact come to that conclusion ? Is this court sat- 
isfied, upon the evidence, that the respondent believed life and 
property to be insecure in the county of Alamance and "the 
civil authorities" incompetent and unable to protect them, 
when he issued the proclamation of March 7, 1870 ? 

And now I proceed to show the good faith in which he did 
act in declaring the county in insurrection. 

I will remind senators of the various appeals made by him 
to public opinion, before he resorted to this extreme remedy ; 
of proclamation after proclamation issued, in which he invoked 
active co-operation from the leading men of the counties in 
which these disorders existed, and sought the aid of a sound 
public sentiment in putting them down and bringing offenders 

23SS court of rtfpEAciiMtiJrrs. 

to justice; that his repeated calls and reiterated appeals were 
in vain ; that crime continued and became more defiant from 
its immunity ; that men were seized at midnight, in their own 
houses, scourged and maltreated ; that life even was taken ; 
and yet for these aggressions was no one convicted or punished. 

In the first proclamation issued in the fall of 1SGS, and 
hearing date October 12th, the respondent uses this lan- 
guage : 

i4 In view therefore of this condition of affairs, I have deemed 
*'it my duty to issue tliis proclamation, admonishing the people 
" to avoid undue excitement, to be peaceable and orderly, and 
,l to exercise the right of suffrage firmly and calmly, without 
" violence or force of any kind. Every good citizen is gratified 
" that North Carolina is at present as quiet and peaceable as 
u any state in the Union. Let us maintain this good name for 
" our state. Let us frown indignantly on the use of brute force, 
"or bribes, or threats, to control the election; and let every 
"officer of the state, civil and military, be prepared to check 
" instantly any incipient step to sedition, rebellion or treason." 

'• The ilag of the United States waves for the protection of 
"all. Every star upon it shines down with vital fire into 
" every spot, howsoever remote or solitary, to consume those 
■■who may resist the authority of the government, or who 
'• oppress 1 he defenceless and the innocent. The state govern- 
" ment will be maintained, the laws will be enforced, every 
' citizen, whatever his political sentiments, will be protected 
• In bis rights ; the unlawful use of arms will be prevented, 
" if possible* and if not prevented, will be punished ; and con- 
•' Bpiracy, sedition and treason will raise their heads only to 
••lie immediately subdued by the strong hand of military 
" power." 

When the act was passed making it a felony for disguised 
men to commit any deed of violence, another proclamation 
was issued, dated April 16th, 1869, that statute having been 
passed on the 12th of April preceding. After making this 
known, the governor, publishing it with his proclamation four 


days after its enactment, uses, in the conclusion of that procla- 
mation, these words : 

" I appeal to the great body of the people to unite with me 
" in discountenancing* and repressing the evils referred to. 
<l Public opinion properly embodied and expressed will be 
" more effectual in repressing these evils, and in promoting 
" the general good that will result from the complete establish- 
" ment of peace and order in every neighborhood in the state, 
" than the execution of the law itself against offenders in a 
" few individual cases. I respectfully and earnestly invoke 
" this public opinion. By the regard which we all have for 
" the peace of society and the good name of the state, I call 
" upon every citizen to unite with me in discountenancing 
" disorders and violence of all kinds, and in fostering and 
" promoting confidence, peace and good-will among the whole 
" people of the state." 

On October 20th, 1869, when these disorders had multiplied 
and increased to a very great extent, he issued another 
proclamation in which he uses the words to which I now in- 
vite the attention of the senate, for as the senate will see I am 
showing what was the disposition of the governor antecedent 
to the proclamation of March 7th, 1870 i 

" It is made my duty under the constitution ' to call out the 
" ' militia to execute the law, suppress riots or insurrection and 
" ' to repel invasion.' I deeply regret that it seems necessary 
" to resort to the military power to enforce the law and to pro- 
" tect the citizen. But the law must be maintained. I have 
" waited in vain, hoping that a returning sense of reason and 
"justice would arrest these violations of the law. But these 
" evils, instead of diminishing have increased, and no course is 
" left to me but to issue this proclamation of admonition and 
" warning to all the people of the counties mentioned, whether 
"engaged in these flagrant violations of law, or whether indif- 
" ferent or insensible to what is occurring in their midst. I 
" now call upon every citizen in the counties aforesaid to aid 


" the civil power in a fearless enforcement of the laws. No set; 
" of men can take the law in their own hands." 

-v. -;i .;;. -v. -v. -v. i;. 

" I now give notice in the most solemn manner, that these 

" violations of law and these outrages in the aforesaid coun- 

11 ties must cease; otherwise, I will proclaim those counties 

• ; in a state of insurrection, and will exert the whole power 

"of the state to enforce the law, to protect those who are as- 

il sailed or injured, and to bring criminals to justice. In a mat- 

• like this there should be no party feeling. It is my fixed 

' jMirpose to protect every citizens without regard to his ante- 

lents, his color or his political opinions; but to do this the 

. must be sacred, must be spread over all alike, and must 

be inflexibly maintained." 

And when, all these measures failing; when warning after 

warning is disregarded ; when crime follows crime, as night 

follows day, in rapid succession; when private houses are in vad 

ed at the dead hours of night, and those "castles," as they are 

sometimes called in English law, and so sacred under ours, that 

;. man is armed with power to take human life, if necessary 

their defence, no longer afford security against violence 

bin their hallowed precincts ; when, time after time, bodies 

jnised men are found prowling, in darkness, over the 

inty of Alamance, committing outrages alike upon the guilty 

and the innocent who may have incurred their displeasure, with 

- i tire impunity; even after all these, the governor hesitates, 

ious if possible to avert the necessity of a resort to the dire 

rcmity of martial law. 

And yet, senators, after the passage of the Shoilher act, 
Wyatt Outlaw is seized at his own house, near the hour of mid- 
lit, and hanged on a tree at the county seat of Alamance 1>\ 
and of seventy-live or one hundred men, armed and associa- 
ted to overcome all opposition, and, as if to defy all law, hu- 
man and divine, in sight <»1 the courthouse devoted to the ad- 
ministration of justice. A few days later another poor, help- 
, halfwitted negro is taken from his home ma similar man- 


ner, a stone fastened to his feet, and he buried in the waters of 
a mill pond, to be recovered only months after when the flesh 
was fallen from his bones and nothing remained but a shoe and 
buttons, by which he could be identified. 

And again, a senator, the author of the act which bears his 
name, is doomed to death by a secret tribunal in a decree which 
directed " Shofmer's habeas corpus to be suspended, 1 ' and his 
body when life is extinct to be "boxed and sent " to Governor 
Ilolden, and the executioners, on their way to his house, at the 
time appointed, are turned back only by information that he 
was not in the county. 

And I cannot refrain, just here, while upon this topic, from 
recurring to one of the most touching and tragic scenes which 
this investigation has disclosed. ISTo one could have listened 
without a thrill of horror, to the simple and pathetic account given 
by that colored widowed woman, Lucinda Morrow, of the cir- 
cumstances of the taking and carrying off of her husband from 
her bedside at night. I give her own words as she tells the 
story of her wrongs : 

" They put the rope around his neck and took him out of 
"doors; kicked him about; and knocked him about, awhile, 
" before they got over the fence. Before they went out of 
"doors, he said, * For the Lord's sake let me tell my children 
"goodbye;- One of them says, 'G — dd — n yen, we'll tell 
"you, good 'bye.' The children were all screaming and 
" hallooing. I said to them, oh ! gentlemen, please spare my 
"husband this time. They said, G — dd — n you, we'll spare 
" him. Said I, oh ! gentlemen; are von going to kill my hns- 
"band? Well, G — d d — n you. you will see him again. Thev 
"got him out of the door, and after they got him out, they 
" kicked him, and put him over the fence and carried him off; 
"and we all got into the yard, screaming and hallooing. I 
" I heard one of them say, after they got down the road apiece, 
" go back and kill every G — d d — n one of them. We went 
"into the house and got our clothes, and run out into the field, 
"and never went back to the house any more. That is all we 


" saw of him till next morning, when we commenced hunt- 
" ing for him. We found him then. He was ' dead. " 

Yes, senators, his liteless body was found next morning, 
with the body of a brother of the wife, both suspended from 
the tree, with a placard upon the former as if in mockery of the 
grief ot a widowed woman and orphaned children. 

And now when persons are found in North Carolina, with 
the hard and relentless ferocity which inflamed the hearts ot 
the perpetrators of this cruel, wicked and double murder, and 
urged them on in the midst of the tears and screams of this 
final parting, insensible to both, shall all this be overlooked 
and no punishment be awarded for the crime, no measures 
adopted to prevent its recurrence'^ 

When my friend [Gov. Graham] was indulging in strong and 
patriotic denunciation of the military outrages upon prominent 
citizens of Caswell and Alamance, as, one after another, he 
referred to them by name, I listened to hear fiom his eloquent 
lips, words of deep and burning indignation against the perpe- 
trators of this greater outrage upon the person and life of Morris, 
an outrage which preceded in time those that invoked his 
severe and deserved reprobation. I thought, as I listened and 
listened in vain, that some sympathy was due to the victims of 
this midnight assassination, which far exceeds in atrocity and 
guilt, any tiling brought to light by the prosecution during this 
Ion;: and protracted trial. 

These crimes, except the latter, were committed within the 
sin' i ttcrvaJ between the passage of the Shoftner act and the 
proclamation of March 7. And now the question confronts us, 
what could the respondent do? What ought he to have done? 
Elad the Bummer's elections resulted differently and had a ma- 
jority of his political friends been returned to the general as- 
sembly, and had the respondent, with knowledge of the facts, 
refused t<> issue his proclamation and to enforce security and 
protection to the people of Alamance, would he not have justly 
exposed himself to a criminal prosecution and subjected himself 


to i impeachment and condemnation before the senate for liis 
great remissness and dereliction of duty ? 

Senators, was not life insecure ? Let your own conciencea 
answer. Had it not been in several instances taken by lawless 
violence within the interval seperating the time of the ratifi- 
tion of the act from that when the proclamation was issued ? 
Will you upon your oaths say, there was no insecurity for life, 
no insecurity for property, and the civil authority was ample 
and adequate for the protection of both, during that period? 
And even if you can say all this, have you not charity enough 
for the respondent, to allow him honestly, upon the evidence, 
to come to a different conclusion ? What would have been 
your conduct, — how would each one of you have acted, situ- 
ated as he then was ? 

Appealing in vain to the people to rise in their might, and, 
by peaceful agencies, repress crime, no response reaches his 
ear. Extraordinary powers are given him to meet the emer- 
gency. Two outrages resulting in death, unparalleled in the 
past history of the state, and, I trust, for its honor, not to be 
repeated in the future, are committed in a single county, one of 
them under circumstances th; t must bring the blush of shame 
to the cheek of every true friend of our state. 

Was the respondent to remain silent and inactive — to do 
nothing ? When a company of more than seventy-five mount- 
ed and armed men, too strong to be overcome by any force of 
the civil authority that could be brought against them, arrest 
and hang, without resistance, an unoffending, quiet colored 
man, and return unmolested to their homes — when i he next 
day, the sheriff of the county, himself a leading member of 
the secret organizations by whose decrees these acts of vio- 
lence are done, sees the lifeless body suspended from the tree, 
and maks no effort to find the offenders — never summons a 
posse nor seeks the aid of others, to assist him in tracking the 
midnight marauders to their den— when every attempt to fer- 
ret out the offenders by the use of legal powers proves unavail- 
ing, was the respondent to see all this and keep quiet ? If he 


theu had honest convictions as to what his duty was under 
the law and failed to act upon them, his remissness under the 
circumstances would have been scarcely less criminal than if 
he were an accessorv after the fact to the outrages which he 
might have prevented. Some forty or fifty cases of gross 
violence had occurred in a single county, more than twenty of 
them upon persons of our own color. It was under these cir- 
cumstances that the proclamation was issued. Was it a crime 
in the respondent to issue it? 

Let us, senators, for a moment reverse the picture and con- 
sider the matter in another light. 

We are the dominant race in North Carolina, and, while 
with most of you, probably, I deemed it an unwise and hazard- 
ous experiment to elevate at once the colored man and enfran- 

ise him with all the attributes of citizenship, and full political 
rights, yet the judgment of the people of the United States has 
determined otherwise and his full civil and political equality 
arc guaranteed under the law. "We have acquiesced in the 
result. Suppose, then, that bodies of armed colored men had 
been organized into ten companies or camps, extending over 
the entire county, as was the case before you of white men, — 
invisible by day, and like prowling beasts of the desert, leavinsr 
their hiding places at night, to execute the fell decrees of their 
secret tribunals upon the helpless and unsuspecting- — that one 
another of the white people of the county had been dragg< d 
from their beds by lawless bands of colored men, — carried to 
the woods— fastened to trees, — stripped, and their naked backs 
brnisi d and lacerated with the lash,— finally released with the 
threai that if complaint was made and redress demanded 

• rough the courts, they would be hung up by the neck, as 
otln i\s had been, — suppose thatsueh acts had been committed 

he colored instead of by the white men of the state, (and it 

• our duty,— your duty and mine, — to protect the colored man 
with the shield of law, as it is our right and duty to protect 
ourselves) — suppose, I repeat, all this violence had been com- 
friitted on us. would the senate be prepared to say that the 


respondent shall remain with folded arms, and, with means of 
redress in his hands, make no effort to repress the crime and 
bring the criminal to justice? I commend, as a just rule of 
action, that golden precept, uttered from inspired lips : "Do 
unto others as }~ou would have others do unto yon," a lesson of 
sublime morality, whose observance would free the world from 
violence and vice and elevate our common humanity. Let us, 
possessing the legal and political power of the state, by our 
conduct, show to the colored race, that while we thought them, 
just emerging from bondage, unfit to be suddenly invested 
with fall political rights, — and they are but children in intel- 
lect and knowledge, though men in stature, — until a better 
training and higher mental and moral culture should have pre- 
pared them for the proper discharge of the high trusts of citi- 
zenship — let us show them, and be true to our pledges, that 
the law is the equal protector of the humblest and the highest. 
Let them feel, under our administration, that the broad shield 
of the state is ample for their defence against all violence and 
wrong, committed under all circumstances and by any men, 
and that they may securely repose in its protecting shadow. 

It has been the glory of Xorth Carolina, in the administra- 
tion and enforcement of her system of criminal jurisprudence 
heretofore, (as I am sure it will be in the future,) that the negro, 
when arraigned at the bar of his country, had accorded him 
every substantial right and privilege on his trial, given by law 
to the white man. During a period of eight years, in which 
it was my official duty to prosecute on behalf ot the state, I do 
not recall an instance in which, when demanding the conviction 
of a colored prisoner, I failed to tell the jury — and such was, 
I believe, the universal practice of prosecuting attorneys 
throughout the state — "you must not find the prisoner guilty, 
" unless, upon the evidence, you would find one of your own 
" color guilty, and let such punishment only fall upon him, 
lk which, under like circumstances, you would inflict on one of 
" your own number." 

It is our solemn duty, and we should avail ourselves of the 


occasion, as a privilege, if we would win them from the perni- 
cious influences which are misleading and prejudicing their 
minds against their best friends — those who have lived with 
them and been brought up with them from infancy until the 
present time, to let them see and know, that in the true and 
honest people of North Carolina, and not in the strangers who 
have recently come among them, they must look for and find 
their truest friends and best protectors. And this we can 
accomplish better than by words, by frowning down and pun- 
ishing every form of lawless violence, of which they are the 
victims, as we would, if we ourselves were the sufferers from it. 

Would this senate, would the people of the state have been 
quiet and calm, had it been known that more than fifty white 
citizens of Alamance had been taken at midnight from their 
beds — made to get on their knees and pray for those who held 
them, mocking high heaven with a form of prayer — fastened 
by their hands or by their necks to some tree and scourged — 
each one of the disguised gang inflicting the decreed number 
of blows, until their vengeance was sated? Would senators 
sit qnetly and unruffled in their places, while this array of 
wrongs upon persons of our own color was unfolded by the 
witnesses? And will senators be less just in the enforcement 
of law for the protection of the weaker, than for the protection 
of their own, the stronger race? 

Here was then a multitude of crimes, and no punishment, 
no remedy for them. Personal security was constantly vio- 
lated, and life even taken, and yet the criminal escapes. It 
is not important, in tins eonnection, to enquire why the 
remedy was not applied. One thing is quite apparent, great 
apathy pervaded the public mind in the locality where they 
Occurred ; and I will say for that portion of the state in which, 
until lately, from infancy up, I have had my home, the people 
would never, for an hour, have tolerated the outrages per- 
petrated in Alamance and Caswell. Such is not the character 
of North Carolina — such is not the reputation of her people, 
and those who have inflicted this stain upon her good name 


are a bastard progeny, and not her true and legitimate off- 

But so it wag; crime was rampant and defiant from im- 
punity. Men are dragged from their houses, for any and for 
no imputed offences— scourged and murdered — and no aveng- 
ing arm is strong enough to protect. The sheriff of the 
county is commandant of a klan ; many leading members of 
the organization prominent citizens ; the arm of justice 
palsied ; the criminal escapes through his disguise in the 
darkness of night ; no one recognizes the pei'petrator of the 
deed and there seems no great disposition to find him out. 
You will remember, when one of our witnesses [Dr. Moore] 
was asked as to the identity of those who came to kill 
Shoffner, and whether he recognized any one of them, his 
answer was, " No, I did not want to know them, I didn't 
" desire to mix myself up with any responsibilities for their 
" acts." There was litcle apparent inclination to bring 
offenders to justice. The county was in a condition of duress. 
Whether it was by a forcible uprising of the people or not, 
there was, in fact, a new usurping government set up in the 
county of Alamance. Your courts and your juries did not 
administer the law, whether from want of evidence or what- 
ever cause. They had become powerless. There was, how- 
ever, a judicial tribunal, erected within the limits of the 
county, embracing in its jurisdiction offences against the 
moral, as well as the civil law. Its sessions were in the 
shadows of the night, in the woods and in the field. It 
issued no citation, no notice of trial to the accused, and its 
judgments were pronounced, without witnesses and upon no 
other evidence than rumor. Its sentences were recorded and 
executed with a fatal, and unerring precision. Banded to- 
gether by an oath which made it the duty of every member, 
from whom the service should be required, to enforce its 
decrees, there was no escape from its obligations. 

When the witness, [Boyd] was asked, by one of the counsel 
for the prosecution, the question ; — "Did you solemnly sweay 


" that vou would not reveal, even under oath in court, the 
u secrets of the order?" and the witness replied, " So I under- 
stood the oath," my friend seemed to regard the answer as 
conclusive proof that the witness was not worthy of credit. 

Let me tell him, however, that we are not left in doubt as to 
the meaning of the oath, as understood among those who took 
it, when we know from all the evidence that the behests of the 
klanswere carried out to the letter, when even murder was re- 
quired, or any other forms of outrage. It may be, that if perjury 
is not among them, it is merely because of the want of evidence 
of the fact ; and we do know that the obligation extended to the 
execution of decrees, involving the commission of murder, an 
offence of much higher grade. When we have thus the practical 
construction put upon the sworn obligations of the order of 
the White Brotherhood ; when we see the actual workings of 
the system, it is a mere waste of words to dispute over the 
question how one, or another, or a third member of the order 
understood the oath and the obligations it imposed. It is 
proved, beyond all controversy, that, in consequence of these 
decrees, human life was sacrificed — the right of personal secu- 
rity, even in a man's own domicil, invaded and violated, and 
all the bulwarks of the law overthrown by their avenging 

There was then another government setup in Alamance, — 
without responsibility for its. acts, — unseen by day, but active 
and efficient at night, — shrouded in a disguise so impenetra- 
ble and effectual, that its agents, like the wild beasts of the 
forest, disappear at daylight and are tracked only by the 
ravages they have committed. A new tribunal has usurped 
the functions of that established bv law, and the rightful civil 
authority is paralyzed and powerless. 

I do not care, for the purposes of the argument, whether it 
was because the judge was inefficient or unfit for his place, or 
the Bolicitor incompetent for his official duties ; whatever 
may have been the cause, the tact is clear and indisputable, that 
public justice was not administered in the courts established 


by law. What was the respondent to do ? Was this to go on 
and continue ? Those who suffered, as they have told yon, 
were intimidated and afraid to complain. If they complained, 
they dreaded another visitation of disguised men and greater 
outrages to he put upon them. What was to be done ? Must 
Alamance he left thus without protection \ Was no redress t i 
he given, no security to he provided \ Was the respondent to 
sit quietly in his chamber, indifferent to passing events, and in- 
sensible to the cries of the injured, charged with the obligat: n, 
that rests upon all executive officers, to see the laws enforced, 
and swcrn faithfully and firmly, to discharge a high official t • 
to the country and to heaven ? Was not the governor called 
upon to give protection \ Would he have been excused for 
withholding it '. You have heard evidence of the appeals 
made to him — you have heard his proclamations read. He 
finds himself compelled to use an extreme remedy — conferred 
upon him however by law — and for this he now stands ar- 
raigned before this court, and you, senators, his judges, are 
required to punish him by doing so, by expulsion from oi: 

When the respondent did at last put forth the power, and 
declared the county of Alamance in a state of insurrec: 
he did so, as the proclamation shows, with a lingering hi 
that the necessity of arming and sending a military force th 
might be arrested, and peaceful agencies be sufficient for his 
purpose. The language he employs in that proclamation, is 
that of strong and earnest appeal : 

" I have issued proclamation after proclamation to the people 
"of the state, warning offenders and wicked or misguided viola- 
" tors of the law, to cease their evil deeds, and, by leadi 
"better lives, propitiate those whose duty it is to enforce the 
•' law. I have invoked public opinion to aid me in repressing 
" these outrages, ana in preserving peace and order. I have 
"waited to see if the people of Alamance would assemble in 
" public meeting, and express their condemnation of such con- 
"duct by a portion of the citizens of the county, but I have 
" waited in vain. Xo meeting of the kind has been held. ] 


" expression of disapproval even of such conduct by the great 
" body of the citizens lias reached this department ; but on the 
■ contrary it is believed, that the lives of citizens who have 
" reported these crimes to the executive have been thereby 
"• endangered.; and it is further believed that many of the citi- 
,w zens of the county are so terrified that they dare not complain 
,k or attempt the arrest of criminals in their midst." 

Was it a crime to issue the proclamation ? Will the court 
so adjudge under all the circumstances attending the act ? A 
crime, to use a power granted by law, — to accomplish the 
very objects for which it was given I 

But, urges one of the counsel on theother side, I regret he is 
not now in his seat, [Mr. Graham,] " the issuing of the procla- 
• mation is all that the act authorizes to be done, and the res- 
k pendent has no right, under its provisions, to exercise a power 
" or employ a force, which could not have been, used before.'' 
it this remark had. not come from the able and distinguished 
gentleman,, whose sincerity and earnestness in making it I am 
not permitted to question, I should puss it by without comment 
or reply. It seems strange indeed that such an argument should 
be addressed to the consideration of well-instructed leiral minds. 
What, issue the proclamation of insurrection and take no further 
step ! Emit a paper bullet and expect to scatter the ranks of the 
enemy with such a missile'. Why, it reminds me of the plan 
of attack by concussion, so happily alluded to on the impeach- 
ment trial of Andrew Johnson, a plan of attack conceived and. 
executed, by one of the managers in that case, during the late 
civil war, upon one of the torts in this state. He proposed to 
destroy the fort with its garrison, by exploding a large quantity 
of gunpowder near its outer walls. The explosion took place 
and when the military chieftain, whose genius had contrived 
this novel method of assault, as the smoke was lifted up, looked 
for evidence of the destructive effects of his artificial tornado in 
shattered walls and scattered lifeless bodies, there before him 
siood unharmed the stony battlements of Fort Fisher, ready to 
meet another assault. And really to issue a proclamation and 


expect, without further action on it, to accomplish any practical 
result, is to give a meaning to the act, as idle as the plan of 
blowing up the fort. And the respondent would have cut quite 
as reputable a figure had he rested content with it3 simple pro- 
mulgation 1 The argument, however, is pressed and it is said 
that it was obviously the intention of the general assembly 
not to supercede, but enforce the civil authority, inasmuch as 
the next section provides for the removal of indictments to 
some other county for trial. A slight examination of the words 
of the statute will suffice to correct this error. 

It gives him power to declare the state of insurrection and 
then " to call into active service the militia of the state to such 
"an extent as may he necessary to suppress such insurreo- 
" tion." Have these words no meaning I Was not the issuing 
the proclamation the fact precedent to the calling out the mili- 
tia to act in repressing violence I While it is true the statute 
uses the word " insurrection," it most obviouslv employs the 
term to describe, and applies it to, that condition of affairs, 
in which " the civil authorities in any county are unable to 
" protect its citizens in the enjoyment of life and property,"- — 
that paralysis of the judicial power, which is attended with all 
the evils of a physical and forcible uprising of the people in in- 

Civil government, and the administration of the criminal 
law, in its ordinary and proper forms, were truly and practically 
suspended ; whether because of an armed force overawing and 
deterring the courts from the exercise of their functions, or of 
those more deadly midnight agencies that operated in secret, it 
was the same to the victim who suffered. 

And now let us consider what followed the proclamation 
and whether any necessity existed for ulterior measures. For 
several months thereafter, there was no substantial change. 
Stephens, a state senator, fell by the hand of assassins, at mid- 
day of the 21st of May, in the court house of the county of 
Caswell, before the insurrection had been there declared. Re- 
newed outrages were perpetrated in both counties, lint if none 


had occurred, the illegal organizations, from which they pro- 
ceeded, still existed, with all their former capacities for mischief. 
The same disguised hands are there, in full activity and force. 
The lion lay crouching in his lair, ready at any moment to 
spring upon his unsuspecting prey. The remedy was not com- 
plete. The temporary cessation of crime does not necessarily 
imply the eradication ol the agencies by which it has been 
committed. There was the association of the " White Brother- 
hood" — spread over the entire territory of Alamance — still 
held together by fearful and impious oaths — still meeting at 
night — still rendering their illegal decrees against the liberty 
and life of others — restrained it may be for the moment — and 
destroyed and broken up only, as all the testimony discloses, 
when the military force was sent there in July. 

And what was the result of the entry of the militia under 
ivirk into Alamance? You may discuss the propriety and 
legality of the movement, and the question may be asked, as it 
has been by the prosecution, over and again, how could the 
military accomplish what the civil authoritj 7 could not — what 
better facilities did it possess to ferret out and trace crime to its 
source, and vindicate, by penalties, the violated law ? The 
answer is furnished by the simple statement of fact, that from 
t lie time when Kirk went to Alamance, these illegal organiza- 
tions did cease to exist and we have no more of their fruits. 
Whether the instruments employed were legal and proper or 
not, — whether the maimer in which they were used is to be 
excused or condemned, the indisputable fact still remains, that 
the object was successfully accomplished, and the career of 
wrong and violence arrested and ended. 

And here let me say, I have not a word of apology for the 
military outrages upon the people of Alamance and Caswell, as 
I have none for those which were perpetrated before the 
coming of the troops. I have no extenuation for either, and 
yet was not the result cheaply purchased, even with the attend- 
ing military excesses, which broke up and dispersed these 


secret organizations and restored to those counties the quiet and 
security they so much needed ? 

The troops, by their presence, seem to have formed a nucleus 
to which the timid, trembling victim could go with assurances 
of safety and protection. The vigorous and energetic measures 
adopted developed the existence and purposes of the conspiracy. 
the number of its members and its territorial extent. Men began 
at once to separate themselves from the organization when am 
were made, and to make disclosures concerning it, and thus 

J O 7 

was put in operation a train of means, which, while no one has 
been punished for past crime, have resulted in breaking up and 
dispersing these lawless bands and putting an end to their out- 
rages — in concentrating upon them a universal popular odium, 
and in an effectual though tardy vindication of violated laws. 
Were not these valuable results ? 

Here we find bodies of men bound by ties so strong that, 
human life was the forfeit which disobedience incurred. Of 
the force of the obligation, as felt by its members, we have a 
striking exhibition in the evidence of Patten, who, according 
to his own account of his treatment, suffered himself to be 
hung up by the neck until he fainted and was almost in the 
very throes of death before he would disclose his connexion 
with the order, or that he had any knowledge whatever of it. 
He denied it, and persisted in his denial up to the very moment. 
when, apparently, he was about to pass from this world to the 
solemn accountabilities of another. And shall we be told that 
organizations, cemented by ties so strong that death seems 
scarcely able to relax them, can be broken up by the regular and 
peaceful remedies of the law, and that no other were required \ 

I do not forget that one of the witnesses (Long,) who was 
chief and commandant of all the camps in Alamance, has testi- 
fied to an attempt to disband and break them up in the month 
of May or June, 186,9. But it is little less than idle mockery 
to tell us they were then dissolved, in the presence of abundant 
proof that the series of outrages committed after that date and 
up to the. enactment of the law, in number and 


atrocity far exceeds all that had been done before. The organ- 
izations did not cease to exist, and whether the witness separated 
himself from them or not, the same fatal decrees continued to 
be rendered and executed afterwards as before. 

I will not weary the patience of the senate with a minute 
recital of the various acts of violence and wrong which have 
been developed in evidence on the examination of the wit- 
nesses. I have them in my hands, in tabulated form, from 
which it appears that twenty white men have been in some 
way maltreated and abused — most of them by whipping upon 
the bare back — an indignity at which the spirit ot a man revolts 
as the last to be endured ; — and that a similar and often worse 
punishment has been visited upon forty or more colored men. 
Among them, more atrocious and horrible in its conception 
than even the murder of Outlaw, was the attempted assassina- 
tion of the member ot this body, who introduced and secured 
the passage of the act since associated with his name. In the 
still hours of the night, professing to have come from a distant 
place, a body of armed men are on their way to his house, 
bearing in their hands the decree which dooms him to death, 
and, in its own expressive language, directs those charged with 
its execution, "to suspend Shoffner's habeas corpus" and "to 
box up and send his lifeless body to Holden." They are 
arrested on the way by information of his absence, and return 
with their fatal mission unfulfilled. 

And by what act was the terrible penalty incurred ? It was 
for exercising within these walls, the right of a member, — for 
nothing more. A peaceful, quiet and popular man, as he is 
proved to be, sent here as are other senators, by the suffrages 
< if the voters of his district, — for an official act approved by 
large majorities in both branches of the general assembly, is 
Miitenced to die! And yet so free and independent are your 
deliberations under the constitution that no representative can 
be called to account or held responsible criminally or civilly, 
for acts done or words spoken by him as such, except to the 
body of which he is a member. 



Senators, pause and consider tins meditated murder and the 
refined cruelty of its details — a deed which, if executed, would 
most probably have consigned husband and wife to one com- 
mon grave, and then ask yourselves, was all this to be toler- 

O ? Ml * 

ated — was nothing to be done to prevent such acts? Which of 
yon, returning from your official labors here to the bosom of 
your family, if obnoxious to the members of these, secret 
societies, would for one moment be safe after night fall, even 
at yo>.r own homes? True it is, your home is your "castle," 
you may take life in defending it against lawless invasion — 
■neither king in England nor other officer here mav enter its 
portals against your will except with process in his hands, — 
but what do these avail — what are any legal safeguards worth- 
when men without law, without precept, without authority are 
found desperate and determined enough to break through all 
obligation, human and divine, and murder the innocent and 
unoffending ? 

And look for a single moment at the inexcusable wickedness 
of Outlaw's hanging, and how little he merited his fate. A 
witness [Albright] has told you that the negroes, exasperated 
at their treatment, and bent on revenge, at one of the meetings^ 
deliberated upon a plan of retaliation by burning barns, a sys- 
tem which determined and carried out by those angry and 
misguided negroes, would have wrapped Alamance from one 
end of it to the other in flames, and brought upon its people 
all the horrors of internicine war. Outlaw was present at the 
meeting, resisted with all his influence the iniquitous sugges- 
tion savins to those assembled : " Resort to no such measure ; 
" trust to the law ; it is your only safety, your only defence;" 
His appeals were not in vain, his counsels not unheeded. 
And now what is Outlaw's reward, after he has done thus 
much for the public good and the peace of society? He is 
himself dragged from home and hanged at the court house of 
the county, and no arm is uplifted to rescue him, no voice 
pleads for his release ! 

These things, senators, ought not to be and must not be. 


The good name and honor of the state forbid. Let these col- 
ored people feel and know, that though the life of their leader 
was thus lawlessly taken, his words are and shall be true — the 
law shall be their protection and defence under all circum- 
stances. Let them see that you will not strike down the arm 
that was interposed, in the hour of trial, for their defence and 

s not an excuse that men thus maltreated were charged 
with stealing, adultery, bigamy or other numerous offences over 
which jurisdiction was assumed. If they were guilty of crime, 
the law provides a mode of trial and adequate penalties. Many 
of the charges if true were susceptible ot easy proof. The same 
evidence and no more should be required to convict before a 
legal, which is sufficient for an illegal tribunal. The violence 
and wrong done were not less criminal because the persons 

'■ring had themselves committed an offence, still less if only 
charged with it. It is for the poor and the criminal even, that 
the law is specially needed. The strong may be able to take 
care of themselves without its aid. They may successfully 
repel assaults upon their persons and property. Let these men 
who then submitted unresisting, willing to bear upon their 
bodies the marks of the lash, rather than resort to violence in 
return, witness in the result of a trial they so intently watch 
and to which the whole country is looking, that this court will 
be just to all — protect alike the lowest and highest in the pos- 

ion of every personal right — and be true and faithful to their 

But Caswell is next the scene of operations, and if the argu- 

it of the defence is successful in regard to the other, it will 
nut be difficult to apply it to this county. What then are the 
facts of the case in regard to Caswell ? 

Two, if not more, murders were committed in the county 
before troops were sent there — one of them under circumstan- 
ces so extraordinary and mysterious that we look in vain in 
the annals of romance for its parallel. 

In the midst of hundreds of people, met for public political do- 


bate at the court house in open day, a man who had been, and I 
think still was, a member of the senate, suddenly disappears 
from public view, and after all search has proved fruitless, is 
found next morning in one of the rooms of the court house, 
stabbed, strangled and dead. It seems impossible that such a 
deed should be undetected and its authors undiscovered, and 
yet, from that day to this, there has been no sufficient evidence 
of either. I shall charge it upon no one until there be proof 
pointing to the guilty criminal. I know and can say only this : 
Stevens had become very obnoxious to the people of his county. 
lie was believed by many to have instigated or encouraged the 
colored people to commit outrages upon the property of white 
people, and was odious to them in consequence. lie was 
present at the meeting taking notes of what the speakers said, 
and attention was drawn to him. lie left, and soon after fell 
by the hand of an assassin. Yv r ho gave the fatal stroke, what 
hand drew and tightened the cord around his neck that stifled 
his cries for help and mercy is known only to the murderer 
and to that God before whom lie and his victim must both 
hereafter stand. 

For this and other dimes unredressed the respondent deemed 
it his duty to pursue in Caswell the course he had adopted in 
Alamance, and similar results seem to have followed. Crime 
ceased to be committed with impunity after Kirk and his men 
arrived there. True there were federal troops at Yancey \ iile 
already, but they were there to aid in the enforcement of civil 
process when called upon, not to hunt up and arrest offenders. 
They were not required for the former, for there was no open 
resistance to overcome. 

The soldiers under Kirk, with all their lawless and violent 
conduct, for which I repeat I have no apology or excuse to 
make, have, nevertheless, it will be admitted, accomplished 
one good and wholesome result, and the condition of things no 
longer exists which preceded their coming. 

I omitted at the proper time, and senators will excuse me 


now for referring to some further evidence of the respondent's 
desire for a peaceful solution of difficulties. 

You will remember, when the use of military measures had 
been determined on, under the advice of others, and in accord 
with his own disposition, the respondent commissioned a lead- 


ing and influential conservative of Orange, an adjoining county, 
to adjust, by peaceful means, the disorders there prevailing and 
to restore peace and quiet to the people. 

Dr. Pride Jones, when entering upon the duties of his com- 
mission, apprehending the consequences of a policy of co- 
ercion, if applied to his own county, writes back in reply, " The 
Kuklux cannot be put down without bloodshed/' Notwith- 
standing this menace of armed resistance, presented in the 
state of public affairs, and made known to the respondent, he- 
still hopes for a favorable issue from peaceful agencies, and says 
to Dr. Jones, " You have authority to promise immunity to all 
" who will separate themselves from these organizations and be 
"at peace hereafter. I cannot pardon before a conviction and 
" sentence. The solicitor may enter a nol. pros, or he ma}' pray 
"judgment. I can interfere, and will interfere, in the latter 
"ease, when in good faith, men separate themselves from the 
"organizations." I quote from memory and substantially his 

In like manner Mr. Ramsey was commissioned to act, and 
with similar powers, in the county of Chatham, as was also Mr. 
Donaho in the county of Caswell. These instrumentalities, 
like his appeals to public sentiment, proved unavailing and 
fruitless of result. And now what is his crime!' Wherein has 
he so grievously offended I In view of all the facts, has his 
conduct been so flagitious; is he that dark, guilty culprit, in 
the light of which he is exhibited by the managers to the gaze 
of an astonished and indignant people ? lias full justice been 
done, to the respondent and his motives in this prosecution \ 
Is he the wicked, desperate man, represented by learned coun- 
sel, whose sole purpose, throughout his whole conduct, has 
been to overthrow your and our liberties and those civil institu- 


tions winch secure them, in order to erect upon their ruins a 
party supremacy ? Can you find no excuse, no extenuation, 
for what has been done ? Must he he personally degrade andd, 
the stigma put upon him and his children of faithlessness and 
corruption in the discharge of high official trusts, when the 
evidence shows his motive from the beginning to have been to 
vindicate the supreme authority of law, and to interpose, by 
rigorous and forcible measures only in order to the effectual 
suppression of crime ? 

But there is another aspect of the case, which remains to be 
considered, and that is, the agency employed^ the character and 
quality of the military force used by him, to accomplish the 
object. It is charged that the instrumentality used was not 
warranted by law ; that he has called to his aid a band of 
foreign mercenaries, if the term may be applied to them; and 
that, instead of drawing from the regular military organization 
of the state, he imported from Tennessee, and commissioned 
as commander, a violent, unscrupulous and desperate man, and 
organized an army of his cwn, for the accomplishment of his 

To all this I reply at once — the governor has authority by 
law to receive volunteer troops for any and all the purposes tor 
which the militia may be used. Such a force, when raised 
and accepted, is indeed a part of the militia. The act to or- 
ganize the militia of the state, ratified August 10th, 1868, sec- 
tion 8, contains these words: 

" The governor is hereby authorized to accept and organize 
k resriments of volunteer infantry, not exceeding six, the same 

O *■ J ** J 

" to be apportioned as nearly as possible through the state, for 
li which purpose the state shall be divided into three divisions, 
" which divisions shall constitute a major general's department. 
" If in the discretion of the governor, it shall be deemed advis- 
" able, he may also accept and organize volunteer battalions of 
" cavalry, not to exceed three, and one volunteer battery of 
" artillery, the same to be equally divided among the divisions 
" named in this section." 


Here, then, is express authority given the respondent to accept 
regiments of volunteer infantry to a number exceeding those 
received into service, lie possesses, under the law and within 
its limits, equal right to accept a volunteer force, that he has to 
call out and use the "detailed militia." Which kind of mili- 
tary force was most suitable to be employed in the repression 
of violence, is necessarily left to his own sound judgment ; and 
if, in the exercise of his discretion, he believed the former most 
available and best adapted to the end, it was alike his right and 
duty to use it. The men constituting this force, when accepted 
and mustered into service, became and are as truly "militia," 
in the proper legal sense of the term, as those conscripted un- 
der the act between the ages of twenty and forty years. The 
clause in the constitution, to which we have been referred, and 
which deslares of what persons the militia shall consist, applies 
obviously to that coerced, involuntary service, whieh is imposed 
as a duty upon a certain class of the population. It is necessary 
then.' sh add be limitations upon the body of men, from whom 
•vice is to lie exacted, and these limitations are founded 
upon age and ; resumed physical ability. These limitations do 
not apply, and are not intended to apply, to persons who volun- 
I ■ /• and are willing to serve, though not within the constitu- 
tion nor the obligations of the constitutional provision. 
There never was an instance, so far as I know, in which a 
volunteer was rejected, on such grounds, when he was physi- 
cally and otherwise competent to perform the duty required ; 
and therefore, we insist, whether the troops, enlisted under 
Kirk, were within or without the constitutional age, whether 
they were, as some one describes them, the rough boys of the 
'• mountains" or the more polished people of the interior of the 
state, wherever they may have come from, — when accepted by 
the respondent, they became and were part of the militia and 
could be used for any legitimate and proper service for which 
any other class of the militia could be used. 

It is charged further that officers must be citizen* and white 
and colored men cannot be enrolled and associated in the same 


organizations, and in tliese respects the respondent lias wilfully 
disregarded the requirements of law. 

This charge, also, we submit, is founded on a total misap- 
prehension of the act. The provisions is this : 

"AH officers and enrolled men in the militia shall take and 
"subscribe the oath required of officers by the constitution of 
"the state of North Carolina." And again the act declares : 

" The white and colored men in the militia shall be enrolled 
■' in seperate and distinct companies, and shall never he com- 
" petted to serve in the same companies." 

This section, last quoted, relating to enrolment in com- 
panies, plainly refers to coerced and conscripted companies 
only. It says that persons of the two races " shall never be 
compelled to serve in the same companies." Their voluntary 
association in a single company is no where prohibited ; and 
if, in any one ot these companies, there was. as alleged, an 
intermixing of white and colored men, (and the testimony of 
the adjutant general of the employment of the colored men as 
teamsters, cooks, and in other menial offices, tends strongly to 
disprove it,) if this intermixing did exist, it is not in contra- 
vention of law, nor is the respondent, had the fact been 
brought to his notice, criminally responsible for permitting it. 
And there is sufficient reason for the distinction, in tin's re- 
gard, between coerced and volunteer militia. In the one case 
it is a man's own choice to become a soldier and, if he pleases, 
to associate himself with those of another color; and lie can- 
not rightfully complain of his own free and voluntary act. It 
is quite a different thing to enforce and compel an association, 
which disregards the instincts of race and the prejudices of 
caste and color. It is only where men are coerced into mili- 
tary organizations and enrolled under the law, that the races 
are required to be formed into separate companies. 

It is further urged that officers of the militia must not only 
be citizens but voters, and as a twelve months residence is 
necessary to this, the appointment of officers was illegal. 

In support of this assertion the 11th section of the act is relied 


on, the words of which are : — " No man shall be an officer or 
" private in the detailed militia, unless he be an elector 
"of the state and first take and subscribe the constitu- 
" tional oath of office." Mark the words, " in the detail? 
" ed militia" The act intends to mpose limitations in 
forming the " detailed militia," providing* restrictions both 
upon officers and men of the " detailed" as distinguished 
from other kinds of militia, authorized under the preceding- 
sections. It has no application to the volunteer militia pro- 
vided for in the eighth section of the act. In the formation 
of this latter force, as none were deemed necessary, so none 
are prescribed for either officer or private, who are to con- 
stitute it. 

We come now to consider the question whether the troops 
employed by respondent were, under the law, properly forma 1 
and officered. 

These companies and the regiment they composed, were 
duly organized and accepted, and their officers appointed and 
commissioned, according to law. It was not necessary that 
an officer of the volunteer militia, as this was, by whatever 
name called for the sake of distinction, should be a citizen, 
still less an elector, when the commission issues to him. It is 
supposed the volunteers have discretion and will judiciously 
exercise it, in the selection of those Avho are to command 
them, and therefore the statuatory restrictions are not extended 
to them, which apply to other militia. Even these, however, 
are required to take the oath of office and swear to support the 
constitution of the state, and this oath is proved to have been 
administered to every one, officer and private, of the entire 

The volunteer organization seems thus to have been formed 
and brought into service in strict conformity to the require- 
ments of law ; and, if it be otherwise, the respondent does not 
incur the penalty of impeachment for an honest mistake of 
the extent of his powers. If the court shall be of opinion, 
that the raising of this military force was unwarranted by 


law, and that it was not the militia meant in the ShofFner act, 
still it does not follow, in the absence of evidence of a corrupt 
purpose, that the respondent shall, for his errors only, be 
degraded from office. 

Who was the master spirit and commander of the expedi- 
tion which moved forward into Alamance and Caswell ? Of 
George W. Kirk, senators, I know little or nothing beyond 
the disclosures of the trial. But I do know he has brought 
before the court testimonials of character I was not prepared 
to hear, after the severe invectives of the public press and the 
unsparing denunciations of my friend, sitting before me 
[Judge Merrimon.] Let us appeal to the evidence and see 
how he stands before the court. 

Mr. Turner testifies that Kirk treated him courteously ; 
offered him his hand, which he declined to take ; and, when he 
spoke of the bucket of water thrown upon him, though I 
did not think he answered as promptly as he ought to have 
done, Mr. Turner did finally reply to my question, in sub- 
stance, that Kirk did disapprove of it. This was the infer- 
ence he had to draw from the fact that men were placed in 
his room to prevent a repetition of the indignity. 

Judge Kerr testified, with great earnestness and feeling, to a 
conversation with Kirk, in which Kirk said to him, " I ask 
" you to do me justice if my name is ever brought up ;"' and 
his prompt response was, " I will do it, sir," and added Judge 
Kerr, speaking to us, "I am going to do him the justice here 
" to-day to say, that he always treated me with courtesy ; ex- 
" cept as I was included in the general denunciatory language 
" addressed to the prisoners, his conduct towards me was 
" courteous and hecomuuj and I have nothing to complain of 
" It'u a. 

It is further in proof, that, when the storm of war was over 
and devastation and pillage were rife in the land — when the 
victorious armies of the United States were passing ovqr our 
impoverished and desolate country on their return home, the 
leading and prominent citizens of the town of Asheville, until 


late the residence of my friend, [Mr. Merrimon,] united in a 
written application to General Stoneinan, to put Kirk in charge 
of the place to protect it from outrage and plunder, using this 
strong and emphatic language, "We have been tanght to hate 
* ; him. hut now know to appreciate and love him." I do not 
know that my friend was among the number ot those who put 
their names to the petition, but as he then resided in Asheville 
and certainly belongs to its class of "imminent men" the 
expression of the witness will take him in. 

Mr. MEKRIMON. [Soto voce.] No, I wasn't. 

Mr. SMITH [resuming]. However this may be, and of 
course I accept the disclaimer, the witness did swear to the 
feet that leading ami prominent citizens — when a man of nerve 
and courage was wanted to shield the town from pillage and 
violence — when, as the interrogatories upon the cross-examina- 
tion seemed to imply, the storm was gathering and about to 
pour its fire and thunderbolts upon the heads of that people — 
at this moment of peril and alarm — did ask of the commanding 
general the appointment of George A\ T . Kirk to take charge of 
their town and give it protection. 

Is it strange that the respondent should select a man, thus 
endorsed, to put in command of a force intended to protect 
the people of Alamance and Caswell from violence and out- 
rage ''. 

But, senators, we hold the respondent not to be responsible 
for acts committed by military subordinates, unless directed or 
approved, provided only he exercise ^ordinary care a/nd pru- 
denci in their selection. The position of commander of such 
an expedition was not to be desired by any one. It required a 
man of true courage and nerve, associated with great prudence 
and moderation- — of ability and energy coupled with sound 
judgment and a humane temper — qualities so rarely found in 
unison — that I should not have known where to look for the 
man possessed ot them, and fitted to conduct the enterprise to 
;i prosperous termination. The respondent has selected Col. 
Kirk, who, if not residing in the state, in the past had exhib- 


ited in an eminent degree some of the qualities so desirable in 
such a commander. And whatever may be said about his 
fitness for the work, whatever of just reprobation may have 
been merited by the unnecessary arrest and harsh and violent 
treatment of prisoners, many of them most exemplary and good 
men, it is nevertheless certain that his operations did effectually 
and finally break up those numerous klans from which all the 
mischief proceeded. 

In regard to his general character and conduct, while wit- 
nesses have testified to his reputation as a desperate and bad 
man, others, apparently respectable and credible, who have 
been with him and under him, and had opportunities to know, 
have assured us of the utter falsity of the report, Col. Kirk 
has been proved by men who served in his command during 
the late civil war, to have been brave in battle and gentle in 
peace, or in the forcible language of one of them, " a thunder- 
bolt in war, and humane and kind to prisoners." Courage in 
battle is usually associated with gentleness to the captive, and 
these are the attributes ascribed by the witnesses to Col. Kirk. 
True it was, his reputation is different among those of us who 
were identified with and stood faithfully by the "lost cause" 
until its banners were forever furled upon the field of Appoma- 
tox. But, senators, we are one people now, and our charities 
must be as broad as the territory of the nation. We must for- 
get the passions and prejudices which the long contest engen- 
dered, and do justice to the patriotism of those who espoused 
the side of the Union as we expect them to do justice to our-. 
I speake only of what witnesses here testified, knowing nothing, 
and having a right to know and tell nothing outside of the tcs- 
timony in the cause. Witnesses in regard to the conduct of 
Col. Kirk in Caswell contradict many of the reports circulated 
to his injury, and in executing his most difficult and delicate 
task, he seems, with a single exception, to have acted with 
prudence and discretion. And what are the facts of this excep- 
tion I 

It was proved by several of Kirk's prisoners, that, on one 


iasion information was brought that he was about to 

I by an armed party from Danville, and that hede- 
red with great vehemence ner, if lie was attacked he 

nld kill all his prisoners and destroy the town of Yi 
ville, with the wc nd children in it. 

It is very rent this was merely a threat, uttered in 

tperate ment and inten led to intimidate. 

.lion of a eerions purpo 
to execute the wicked tl It was made i for no 

t than to ov. an uprising ami 

air construction 
Is, when Judge 
th him and asked "why put us to dea . i are your 
.' the r< answer is returned, ••It* you will 

shall a hair of tead be 

; >u will promise 1 nothing, I sh 

have you hurt." 

.nguage is that donate man, uttered in a 

nt of great excitement, when he was exp 
Liately a h( rce, and wanted no impediment in 

•. And the moment t nrance required was given by 

!iT, the prisoners retired to a room, where they were 
in the midst of 1 ts as when they testified in tl 

■ I. Will senators convict . odemn respondent 1 1 

el y Kirk, not executed i I smpted to be, 

m which, in calmer momentsy as the whole of his c 
duct shows heart revolted 1 Wh ime then has respon- 
dent committed I 

Will you tell me that : hung men up by the m 

Will you tell me that he extorted confessions from his prison- 
ers i Vv'iil you tell me that he levied black-mail upon them, 
i ig their p< rsons and 'citing them go at liberty only for a 
tniary price 1 He ought to have been shot by some of" 
. .ii for hi-> cruel and wicked acts. I have not a word ot 
ape . for this or any similar conduct. But, senators, when 
i refuse to permit us to show that the governor attempted 


to an est and punish him for levying black-mail and for other 
crimes, I beg you not to remember in judgment against him 
that which you would not permit us to explain. You allowed 
us no opportunity to show what he did do. Your ruling was 
that all this was an after-thought and therefore inadmissible in 
evidence. I do not complain that you have excluded the evi- 
dence, but the respondent could justly complain, if, when you 
have thus closed his mouth, you should bring up the conduct 
of Burgen to condemn him. 

But we insist that Governor Ilolden never sanctioned a 
single act of outrage on the part of these subordinate officers. 

You will remember, senators, that when Kirk was dis- 
patched to the scene of military operations, about the 20th or 
22d of July, if I recollect the time aright, there was a general 
order issued, containing instructions as to his conduct, and 
therein he was expressly directed and enjoined to arrest sus- 
pected persons only, and, at the same time, to afford ample 
protection to the lives and property of the people. These arc 
the instructions for which the governor is responsible, and 
not for their disobedience. He is not chargeable for acts of 
officers done in disregard of his directions ; for such they and 
they alone are accountable at the bar of public justice. If 
Burgen perpetrated the excesses and enormities imputed to 
him — and the evidence is quite positive that he did perpetrate. 
them — then arraign and try him for crimes as you would any 
other offender; for, to the extent that he wilfully exceeded 
his rightful authority and departed from the line of prescribed 
duty, he is criminal, unprotected by his commission and liable 
for his acts. It woufd be a monstrous doctrine, alike unsus- 
tained by reason or authority in law, to hold the supreme 
executive officer of a state chargeable personally with the 
misconduct of all those whom he appoints and commissions 
to perform public trusts. He is required to select such per- 
sons as he may deem suitable for public office, and thou upon 
them and them alone devolve all the responsibilities of the 
manner in which its duties are discharged. Nor is the rule 


less applicable to the acts of military officers outside of the 
restraints imposed by the order of their superior, which, under 
the general law, is to them a special law for their guidance 
and control. 

The prosecution has produced in evidence to affect the re- 
spondent (and I must express my regret that it was done) 
harsh and violent paragraphs from a political paper opposed 
to him, and seeks thereby to charge him with knowledge of 
what was transpiring, and of ttie gross outrages, mentioned 
and commented on therein, and invokes the condemnation of 
this court in that he did not interpose to prevent them. 

But the statements in that paper are in many particulars 
quite unlike the facts as thev come out in evidence on this 
trial, and we have, in these discrepancies, a forcible illustration 
of the truth, that we are not to look for a calm and un- 
prejudiced narrative in the teeming columns of an excited 
partisan press and especially during an animated political 
campaign. I call attention, for a moment, to one of the cases 
jreatly misrepresented. 

On August 3d, 1870, the respondent addressed to Colonel 
Kirk a letter, from which I will readonly so much as presents 
the point now before us. lie says : 

" It is reported that Lieut. Col. Burgen, put a rope around 
" the neck of William Patton, one of the prisoners, to force him 
■ to confess. Evidence obtained in this way is worthless. All 
" prisoners, no matter how guilty they may he supposed to be, 
" should be treated humanely. From my knowledge of your 
" character, 1 am sure it is only necessary to call your attention 
"to this matter." 

Tli is was the language of the respondent's letter of instruc- 
tions to the commanding officer of the regiment in which Bur- 
gen held a subordinate position, when intelligence of the hang- 
ing of Patton reached his ears ; and it appears from the testi- 
mony of Col. Clarke, who communicated the information to 
tin: governor, notwithstanding the publication in news- 
papers, and notwithstanding the evidence given here, that Pat- 


ton himself voluntarily sought out Col. Clarke and gave him a 
very different narrative of the manner of his treatment by Bur- 
gen. His statement then was that while it was true the rope 
was put around his neck, it was not done to punish him — that 
he did not so understand and it did not hurt him. This was 
substantially his account of the matter, and this was at once 
communicated to the respondent. And when the governor 
learned thus much, he hastened, in the letter from which I have 
quoted, to express his disapproval of the act, and to say that all 
prisoners must be treated with humanity and that no coercion 
must be resorted to for the purpose of eliciting evidence, not 
only because it was wrong in itself, but because evidence ex- 
torted by duress or menace was wholly inadmissible in court. 
In this connection I read an extract from a general order of 
July 13th, issued to Col. Kirk, through the adjutant general's 
office, in which it is said : 

" He will take the necessary steps to preserve order, and to 
" give the best protection to life and property," 

AYe maintain, then, Mr. Chief Justice and Senators, that all 
which can be legally demanded of the governor is : — that he 
select suitable and competent officers, — that he prescribe neces- 
sary rules and instructions for their goverment and guidance— 
and that he interpose, when advised of misconduct, for the pro- 
tection of the injured and the redress of their wrongs. When 
the respondent has taken all reasonable precautions, and issued 
general directions, as in this case, he ought not to be charged, 
by a fair minded body of triers, with responsibility for those 
acts of disobedience and lawlessness, which he disapproved and 
condemned, on the part of that atrocious and guilty man, who 
seems to have lost sight of the real objects of the military move 
ment and to have made it subservient to the promptings of his 
own depraved appetite and avarice. As I have before said 
there is no palliation or apology for the conduct of Bnrgen, and 
it is a matter of regret that he has escaped the penalty due for 
his crimes. 

13ut when this man violates the laws of the country and the 


commands of the governor, addressed to his superior officer, — ■ 
and when the governor promptly interferes, as soon as informed 
of his misconduct, to prevent its recurrence, I do protest, in the 
name of common justice, against a doctrine which imposes on 
respondent that high degree of responsibility tor the acts ot 
subordinates necessary to his conviction. 

It would he very extraordinary if the president of the United 
States had been personally charged with every illegal act corn- 
committed by the infinite number of his officers, military and 
civil, scattered over the southern states, during the late civil 
commotion; as, tor instance, the hanging of Daniel Bright in 
the county of Pasquotank, for no other offense than that he be- 
longed to a military force, raised under the laws of this state 
and commissioned by its governor. 

It is upon the authors of outrages like these, and those who, 

having power, sanction and approve, that public odium should 

rest, and the vengeance of violated law should fall. But the 

amanding officer is not a party to, nor liable to public opin- 

i or otherwise, for a departure from the usages ot civilized 

. the laws of war, or the dictates of a common humanity, 

in what may be done against his will and without his sanction. 

If then, senators, I have been successful in maintaining the 

propositions discussed, 

1. That the proclamation, declaring the insurrection was 
rightfully issued by the authority and under the requirements 
of the act ; and 

■1. That the force employed was regularly organized and ofii- 
ed according to law ; 

] proceed now to consider the legal consequences of declaring 
a county to he in a state of insurrection, and what may be done 
. fully therein. 
The necessary legal effect of such declaration, it is submit- 
. was to determine conclusively the fact, by a clear, incon- 
table and official test, with all the results of an actual sub- 
ting insurrection. Being thus established by law, and de- 
red by competent authority, the agencies, producing and 


maintaining it, could be lawfully suppressed by force. The 
effect ot decLa/rwig a county in inswrrection, was to create, for 
all legal purposes, a state of insurrection in such county ; in 
other words, the fact declared exists, and the declaration is 
conclusive proof of its existence, for all objects and to admit all 
proper measures of repression, as if an actual insurrection is 
otherwise proved. 

It is very true that it the governor in the exercise of the e 
traordinary power conferred upon him, grossly abuses it, as if. 
without pretext, lie should assume to declare the county of Wake 
in a state of insurrection, he would be responsible for th< 
of his power. But the principle still remains unaltered, to- 
v;it, that there attaches to a county so declared by authority 
law, all the incidents and qualities of a state of actual insurrec- 
tion. In other words the declaration is made by the statute 
foil and conclusive proof of the fact. It is thereafter no longer 
the subject matter of inquiry and dispute, and, collaterally, it 

) be assumed to be true and cannot be contradicted. I 

.king- now of the proceeding by impeachment, been:' 
whether the declaration be true or false, becomes a quest 
only when the governor acts con . — when he dbui 

\t, — when he uses his power for improper <md 
ids. If he acts honestly, he is not responsible whether 
alleged insurrection exists or not. 

Assuming, then, the insurrection to exist, to wit, that state 
of things in which " the civil authorities are unable " to pro- 
tect the citizen i of a county in their lives and property, w 

ilts \ The k ' / of the civil authority legalizes the 

introduction of force. The putting down insurrection invo! 
force, can be accomplished only by force and by military 
agencies; and whatever was that condition oi the county, 
which warranted the respondent in pronouncing it in a state 
of insurrection, was the very condition of things which he 
was to correct by the employment of a military force. The 
ueral assembly has undertaken to say, that a county ia 
. ri) and the governor ina/y , we, whenever in 1 


judgment, life and property therein become insecure, and the 
judicial tribunals, in the use of the ordinary process of law; 
prove insufficient for their protection. I repeat, and it is the- 
point on which the defence mainly depends, whenever, in the 
words of the act, " the civil authorities of any county are unaMt 
" to protect its citizens in the enjoyment of life and property! 
and, declaring a state of insurrection is to this effect, then the 
military arm of government may be employed to furnish that 
protection and that security to both, which do not exist under 
the administration of the civil law. This being so, it follows, 
and was so decided by the chief justice, on the hearing of the 
habeas corpus cases last summer, in which all the judges of 
of the supreme court concurred, as he states at the conclusion 
of his opinion in one of them, arrests might be lawfully made- 
of suspected persons within the limits of counties declared in 
insurrection. In other words, the great constitutional privilege 
( I everj citizen to be secure in person and property, and not 
to be interfered with, nor his liberty restrained, except upon 
affidavit and warrant rightfully issuing thereon, yields for the 
moment to a paramount law, the law of force, which is toler- 
ated by the laws of the country and the usages and necessities 
of the state as a means of restoring the destroyed authority o* 
the law itself. 

My brother Eoyden has shown in his quotations from vari- 

books, that this is not so much a species of law, but rather 

a temporary exercise of physical power put forth to bring 

about the restoration and re-establishment of the temporarily 

pended civil power itself. And this being so, we submit 

that the right to arrest, so asserted by the chief justice and 

iates, carries with it the right to detain, so long as is 

■iry to accomplish the objects for which the arrest is 

made. The arrest of suspected persons by military authority 

is not to bind them over for trial — its purpose is not so much 

to bring offenders to justice, though this may be one of its 

fruits, as it is to break up and destroy the illegal organizations 

which have been the prolific source of crime. It is a speciag 


of preventive, not remedial force, coming in to set tip the dis- 
placed legal authority and restore its rightful jurisdiction, 
And therefore necessarily, it would seem, until the ends have 
been attained, the right to arrest and to detain for a limited 
period rest upon precisely the same grounds. 

But it is argued that the respondent contemplated the trial 
of the prisoners by a military court and had already appointed 
the judges who were to hold it. It is fortunate for the respon- 
dent that this was not done and that better counsels prevailed. 
lie has thus escaped the consequences of a very dangerous error 
in the construction of the provisions of the law under which 
he was acting, and from which it would have been a very dif- 
ficult task to defend him, tor the purposes of that law most 
manifestly were, not to set up new and unheard-of tribunals 
for the trial of offenders against the civil law, but to warrant 
the arrest and detention of them, until the insurrection is re- 
pressed, its agencies broken up and" the supremacy of law and 
order tally restored. And thus the power given to the respon- 
dent by the act is restricted to the arrest and detention of pris- 
oners until, and no longer than, they can be surrendered to the 
courts recognized bylaw and invested with jurisdiction to hear 
and determine the cause. But it is a sufficient answer to the 
charge to sa}- no such military courts wei'e held, and if the inten- 
tion was entertained it was not carried into effect, so as in any 
way to involve the respondent. 

We submit, then, senators, that arrest and detention resting 
upon similar foundations and supported by the same reasoning, 
if the writ of habeas corpus runs into a county in insurrection, 
because the constitution declares its privileges shall never bo 
suspended, does not the right of exemption fromarrest^ other- 
wise than under due process of law, equally guarded in the 
constitution and admitting no abridgment or suspension, exist 
also in full vigor in such county ? The right to the remedy of 
habeas ca/'jms is no greater, nor more strongly fortified and 
defended, in the organic law than is that other right, to be free 
from unlawful arrest in the first instance. Not less valuable 


and important is immunity from arrest than deliverance from 
it when made. If the effect ot the proclamation is to suspend 
those constitutional guarantees which secure personal freedom 
and to justify arrests of men upon suspicion only, what violence 
is there in the supposition that it also suspends the right of im- 
mediate release from custody ( I am unable to see the prin- 
ciple upon which the two cases can he distinguished, or why 
the one right should be deemed less sacred than the other. 

The same reasoning, which conducted the mind ot the chief 
justice to the conclusion, announced by him heretofore, that 
the respondent had the right to arrest suspected persons, in a 
county declared to be in insurrection, would seem to prove also 
his right to detain for such reasonable time as was required 
for the suppression of the insurrection even as against this 
at remedial writ. This view of the subject derives addi- 
tional strength from the very nature of the insurrection and 
the means to be used to overcome it. 

Suppose there had been in truth a flagrant open armed re- 

tance to the law and its officers, — a large conspiracy and 

rising of the people — and bands of desperate men were 

d in the work of overthrowing the government and all 

its civil agencies, would it be seriously contended that men, 

thus employed, with arras in their hands, may be arrested, and. 

S03n as arrested, must be turned loose again to rejoin the in- 

sur 11 the numbers of the \ cry bands which a mili- 

sent to overcome and disperse I And yet such is 

the inexorable result of a doctrine which forbids you to rel 

1 rightfully arrested, even for that 

I Interva] required tor the re-establishment of a subverted 

rnment and the restoration of public order. And thus 

we tain that the respi • authority for refusing 

!(•)• his prisoners and for further beeping them in 

rery argument that justifies the original arrest, 

until the purposes of the arrest have been secured. 

The hour of two o'clock having arrived, the court adjourned 
to meet at half-past three o'clock. 



The COURT re-assembled at half past three, Hon. E. It. 
Person, Chief Justice of the Supreme Court, in the chair. 

The CLERK proceeded to call the roll of senators, when the 
following gentlemen were found to he present : 

Messrs. Adams, Albright, Allen, Barnett, Battle, Bellamy, 
Brogden, Brown, Cook, Council, Cowles, Crowell, Currie, Dar- 
gan, Edwards, Eppes, Flemming, Gilmer, Graham of Ala- 
mance, Graham of Orange, Hawkins, Ilyman, Jones, King, 
Latham, Ledbetter, Linney, Love, Mauney, McClammy, Mc- 
Cotter, Merrimon, Moore, Norment, Olds, Price, Robbins of 
Davidson, Bobbins of Rowan, Skinner, Speed, Troy, Waddell, 
Warren, Whiteside and Worth — 15. 

[r. SMITH, resuming his argument, said : 

Mr. Chief Justice and Sexatoes : Thanking von for the 

o %.■ 

irtesy by which I am enabled to conclude the discussion of 
this case, I will resume at the point where I stopped when the 
hour for recess arrived. Senators will recollect that I was 
speaking in reference to the charge contained in one of I 
articles that the governor had violated the constitution and 
jaws ot the country by declining to surrender, upon the issue 
of the order by the chief justice of this state, the prisoners who 
had been arrested and held in the custody of the military oifi - 
ceus. The judges of the supreme court, all, concurred in the 

;, as I have stated, that the effect of the declaration 
insurrection in the comities of Alamance and Caswell, was to 

horize — to legalize, so to speak — the arrest of suspected per- 
.itjiout all those constitutional safeguards that arc appli- 

le to other cases in which arrests were made. And it was 
the opinion of the chief justice, that as soon as ordered, tin- 
writ ot /idbeas oorpus could run into the counties and the party 

- compelled to be surrendered and discha;gcd upon the 
revision of the case by a judge of the supreme court. Now 
the view that we take of a state of insurrection, when declared 


to exist, in a county, is, that for the purposes of the case mar- 
tial law prevails there, and all civil remedies are suspended. 
It is upon that ground only, that the arrest is lawful ; and 
upon the same ground, it would be excusable to refuse 
to surrender the part}' who is in custody. And the right 
to arrest, with the grounds upon which it exists, neces- 
sarily involves that temporary detention of the prisoner 
which is essential to the consummation of the objects of the 
power declaring the locality in a state of insurrection. In 
other words, the constitutional right to immunity from arrest 
is the same in the county as the right to be set at liberty 
under the habeas corpus. It would be strange if a party could 
be arrested and coidd not be at' all detained. It would be a 
singular omission, if martial law came in and authorized the 
arrest of parties and, at the same time, compelled them to be 
turned over immediately to a judge and liberated, and thus 
permitted to join the insurgent party. But that as we under- 
stand it, is not the correct view of martial law when it right- 
fully exists anywhere. Martial law supercedes all other law. 
It conies in as a sort of overruling necessity. It exists, not be- 
cause it is recognized by law, but the emergency, the safety of 
the state, requires the exercise of something beyond, over, and 
above the ordinary legal tribunals of the country. 

Now it is true that the privileges of the writ of habeas c&r~ 
cannot be suspended by law under the constitution of 

North Carolina, but the right to be released from an illegal ar- 
rest is pari possi with, and not to be extended an inch beyond 
the right to be protected under the constitution from any arrest 
:it all except by a warrant issued according to law. The con- 
stitutional right to immunity from arrest is without any quali- 
fication, just as much as is the constitutional right to be dis- 
charged by virtue of the habeas corpus. 

But whether this proposition be true or not, certanily the gov- 
ernor so understood it, because he regarded the opinion of the 
chief justice, as leaving it discretionary with him, if the public 
safety required that he should retain in custody the prisoners. 


And so believing, and so understanding the judicial opinion 
pronounced, there is absent that guilty intent, that corrupt pur- 
pose, which subjects him to this mode of punishment, in de- 
clining to surrender the prisoners under the writ. 

But, senators, these doctrines have been carried infinitely 
further in the government of the United Stutes than thev have 
ever been recognized in North Carolina. The privileges cf the 
writ of habeas corpus cannot be suspended by the president of 
the United States. It is a right reserved to the congress of 
the United States, and has been, over and over, so decided. 
And yet, when these acts of arrest were being done, and when 
the president was refusing, upon the request of judicial 
authority, to surrender any of the prisoners, the attorney gen- 
eral of the United States, a man eminent for his legal learning 
and his high professional attainments, gave it as his opinion 
that, whenever a person was arrested by order of the presi- 
dent of the United States, no court in this country, federal or 
state, had the right to relieve him. He puts his whole argu- 
ment on the ground that there are three co-ordinate and equal 
branches of the government ; that the legislative, executive and 
judiciary are independent of one another in the exercise of 
their respective powers, and united and associated together 
constitute the sovereignty of the state. And the argument is, 
that if the president is compelled to surrender a prisoner held 
in custody under his order by a subordinate, it is elevating the 
judiciary over the executive department of the government, 
and it is allowing an appeal from the decision of the highest 
civil officer of the country — a chief magistrate — to the judges, 
a branch of the judicial department. Attorney General Bates 
gives his opinion in answer to the following questions of the 
president : 

" In the present time of a great and dangerous insurrection, 
"has the president the discretionary power to cause to be ar- 
" rested and held in custody, persons known to have criminal 
" intercourse with the insurgents, or persons against whom there 
" is probable cause for suspicion of such criminal complicity V 


" In sucli cases of arrest, is the president justified in refusing 
'•' to obey a writ of habeas corpus issued by a court or a judge, re- 
t; quiring him or his agent to produce the body of the prisoner, 
" and show the cause of the detention, to he adjudged and dis- 
" posed of by such court or judge ?" 

The attorney general held that the president had a discre- 
tionary power to arrest and forbid obedience to a writ of habeas 
corpus, and said : 

" Unity of power is the great principle recognized in Europe ; 
"but a plan of ' checks and balances,' forming seperate de- 
partments ot government, and giving to each department 
" separate and limited powers, has been adopted here. These 
■• departments are co-ordinate and so-equal : that is, neither 
" being sovereign, each is independent in its sphere, and not sub- 
" ordinate to the others, either of them or both of them togeth- 
" er. It one of the three is allowed to determine the extent of 
• its own powers, and that of the other two, that one can in 
" fact control the whole government, and has become sovereign. 
"The same identical question may come up, legitimately before 
v - each of the three departments, and be determined in three 
■• different ways, and each decision stand irrevocable, biding 
"upon the parties to each case, for the simple reason that the 
•• departments are co-ordinate, and there is no ordained legal 
"superior with power to revise and reverse their decision. To 
•• ,-ay that the departments of our government are co-ordinate, 
" is to Bay that the judgment of one of them is not binding 
■■ upon the other two, as to the arguments and principles in- 
volved in the judgment. This independence of the depart- 
" incuts being proved, and the executive being the active one, 
" bound by oath to perform certain duties, he must be, there- 
"forc, of necessity, the sole judge both of the exigency which 
•• requires him to act, and of the manner in which it is most 
•• prudent for him to employ the power entrusted to him, to 
" unable him to discharge his constitutional and legal duty/' 

Now I am simply citing this opinion as that of the law advi- 
ser of the government of the United States, as to the relations 


between the judicial and executive departments of the country, 
and with that opinion published among the opinions of the 
attorney general — the legal adviser of the executive of the 
United States — certainly the present governor of North Caro- 
lina may be excused it following the opinion thus pronounced, 
he regarded himself as the judge in the exigency which existed 
as to whether these parries should be surrendered or detained. 
I admit it is a responsibility assumed by him lor which he is 
amenable to this tribunal. You may enquire into the integrity 
of his conduct ; but notwithstanding this investment of large 
and almost tyranical powers, the exercise of them is not itself 
an impeachable offence, unless accompanied with those im- 
proper motives and corrupt intentions which give to the act, 
and every other executive act the color which subjects him to 
an impeachment. If then, the executive, whether right or 
wrong — (I am not discussing the correctness of his opinion) — 
with these lights before him, with these views as to the mean- 
ing of the opinion of the chief justice himself, if he did not im- 
mediately surrender persons who were arrested and held, surely 
I may say in his behalf, that he ought not to be judged guilty 
of a corrupt purpose and intent, in doing an act which has so 
high a precedent and authority, as that which I have cited in 
its support. 

It is said that there was not onlv an unlawful calling out of those 
troops, but an unlawful act of the executive in providing for 
their payment, and that this being done in controvention of an 
injunction issued by one ot the judges ot the state he has com- 
mitted an impeachable offence, in that he incouraged and incited 
the paymaster of his army to pay over his funds in opposition 
to that fiat. Now, senators, the governor ot this state is not 
subjected as such to the judicial fiats of the judges. To sup- 
pose that the injunction could be issued against him for an 
ordinary official act, is to say that if he disregarded it he could 
be put in prison, and the whole machinery of administration 
stopped. The governor is responsible, is is true, for those acts 
which appertain to his office, and those powers which are con- 


ferred upon it, but lie is uot responsible in the exercise of his 
functions as the chief magistrate of the state, to be controlled 
by mandamus or injunction, or otherwise from any of the 
judges. It is within the memory of us all, for it is an occurence 
dating only two or three years back, that an attempt was made, 
in the supreme court of the United States, on the part of the 
state of Georgia and the state of Mississippi, to arrest, by an 
injunction upon the president of the United States, the execu- 
tion of those acts of congress under which reconstruction has 
taken place throughout the south, upon an allegation in the 
appeal, that those acts were in contravention of the constitution 
of the United States. But those bills were not entertained ; 
leave was not given the parties to file them, on the broad ground 
that the courts had no right to issue an injunction to interpose 
between the executive of the country and the execution of the 
public laws of the country. 

We submit that in this case they had no right to an injunc- 
tion as against the governor of this state, and in fact noinjunc- 
tii n was asked or granted against him. The injunction grant- 
ed was against a subordinate officer — an appointee of his, but 
not an officer for whose conduct he is responsible. But if he- 
had a right under the laws of North Carolina to call out these 
troops, he had a right to provide for their payment. There 
can be nothing criminal in executing that power because 
an injunction had been issued against a subordinate officer 
of the department, or any military officer of his appointment. 
I am fortified in this by the fact, that the record shows that no 
punishment was administered for disobedience of the injunc- 
tion, but the whole matter was discharged upon its presenta- 
tion the second time before the presiding judge. So that 
there was no breach of the injunction in that case, which in- 
duced the judge to proceed and punish anybody. The gov- 
ernor's right depends not upon whether it was issued, but upon 
his own authority, independent of the injunction, to draw his 
warrant and make the payment. If he had authority thus to 
appropriate the money in the treasury, which its payment over 


bj the proper officers under his orders proves, the injunction 
.granted upon ex parts statements contained in the bill against 
others, could not impair or abridge the powers belonging to 
the chief executive office of the state under the laws, nor is the 
governor in any respect amenable, by impeachment or other- 
wise, for the act. 

But one of the articles alleges, as an impeachable offence, the 
arrest and detention of Mr. Turner, in the county of Orange, 
•outside of the territory declared in insurrection. 

This arrest cannot be defended upon the strict legal grounds 
on which the arrest of others rests, because it took place in a 
county in which the civil law remained in force. Let it be 
remembered, however, that the military movement put on foot 
was on a large scale and contemplated the over throw and 
breaking up of organizations of great strength and extending 
over many counties. Under such circumstances there will be 
occasional irregularities and excesses, which might perhaps 
have been avoided but which are incidental to such enterprises. 
They should not be allowed to loom up and assume an impor- 
tance disproportionate to the matter of which they form a part. 
They are but eddies, ripples upon the surface of the great 
volume of events, as some mighty river, moving onward to the 
sea. If the dispersion of the illegal klans and the reinstating 
the dominion of law over a large territory from which practi- 
v it had been expelled, were objects commensurate in im- 
portance with the magnitude of the military operations inaugu- 
atcd, and required them, the arrest wrongfully of a single per 
on, under great personal provocation, should not require an 
impeachment, when the grand military movement itself stands 
pproved, especially in the absence of a corrupt motive promp- 
ing the act The senate is not compelled to award a disgrace- 
il penalty simply because of an unintentional infraction of the 
Nor is there sufficient evidence that the arrest was made by 
ic orders of respondent. Those who executed the order 
of arrest declared that they were acting by the authority of 

1** *7 


both the governor of the state and the president of the United 
States, and while the declarations were admitted as accompany- 
ing and qualifying the act, as part of the res gestce, they are not 
competent to prove the truth of the independent tact that 
either of these executive officers did authorize or sanction what 
was done, in opposition to the positive averment in the answer 
that the arrest in Orange was neither authorised nor approved 
by the respondent. 

I will now call your attention to some citations, in support 
of the positions maintained, which have been deferred until 
now in order that the train of argument marked out might not 
be broken in upon by their introduction at an earlier stage. I 
quote a recent work on nnrtial law, from Finlason (page 14<>) 
where the law will be found briefly stated. 

" It also follows, from the very nature of an. emergency, of 
" which those only can judge who have to meet it and to deal 
% " with it, that subjects to future censure by the crown for any 
" gross error or excess, (always assuming an honest intention 
" to meet the emergency, and to do no more,) the authority oi 
" the executive or the officers ol the crown entrusted with the 
" exercise of martial law, must necessarily be absolutely in the 
" sense that it is discretionary." 
Then on page 148 he says: 

" Yet on the other hand, under ordinary law, the meanest 
'• magistrate or officer of justice is protected, if he acts honestly 
" in the exercise of a discretionary authority ; otherwise it is 
" obvious that there would be no safety in actions in the exercise 
" of public functions, and no one would be willing to act on 
k> them, the result of which would be tatal to the great objects 
•" of government, the public safety. And if this immunity 
" attends the humblest officer of justice, how much more 
"Would it in law be deemed to attend the exercise by the 
"executive of their high functions from which all others derive 
" their authority. 

" The general principle upon which legal immunities rest, 
" namely, the public interest, which requires that those who 



'•' , ' are called upon compulsorily, by the obligations of public 
" duty, to exercise functions more or less discretionary, and 
" which it is for the interest of the public should be exercised 
" freely, with a sense of perfect freedom and independence ot 
"judgment, without fear of legal liability for honest error, 
"and which is applied by the law of England, even in ordinary 
" times, under ordinary law, for the protection of the meanest 
"of its ministers, appears to apply a multo fortiori to those 
" who exercise the highest functions of the state, the functions 
" of supreme excutive authority upon which depend the safety 
"of the state and the security of all the rest. And accord- 
" ingly so it has been held." 

I desire also to refer to what is said by the chief justice of 
the United States in an opinion which he delivered as to the 
condition of a southern state declared in a state of insurrection. 
In a case known as the Mrs. Alexander'scotton case, [2 Wallace 
reports, 419,] which was a case in which claimant of the cotton 
alleged that though living in one of the southern states she was 
a loyal woman, and that therefore the armies of the United 
States had no right to confiscate her property as enemies' pro- 
perty the chief justice said : 

" It is said that though remaining in rebel territory, Mrs. 

O O %i * 

" Alexander has no personal sympathy with the rebel canse, 
" and that her property therefore cannot be regarded as enemy 
" property : but this court cannot inquire into the personal 
" character and dispositions of individual inhabitants of enemy 
" territory. We must be governed by the principle of public 
" law, so often announced from the bench as applicable alike to 
" civil and international wars, that all the people of each state 
"or district in insurrection against the United States, must lie 
" regarded as enemies, until by the action of the legislature and 

1 the executive, or otherwise, that relation is thoroughly and 

' permanently changed." 
And in this connection, senators, I will say that the authority 

ited on the other side from another report, is totally at 

ariance with the principle announced in this decision as to 


when the state of insurrection determines. It is declared to be, 
in this opinion, not to be the right of each judge to determine 
the facts for himself, but of the executive and national authority 
as represented in the president and congress of the United 
States, whose decision upon these points the judiciary of the 
country must follow. And it would be very extraordinary if a 
judge sitting in Virginia were to declare an insurrection at an 
end, and another one sitting in North Carolina were to declare 
ii in force, and we were to have a varying decision applicable 
to the views of each particular judge that might be called upon 
to pass upon the question. Far better is it to follow out the 
rule laid down by the chief justice, that there must be a power 
and authority somewhere to declare the whole insurrection at 
, end, which shall be binding upon and shall determine the 
fact for the judiciary in all parts of the country. Then we have 
a clear and distinct and permanent rule, one by which we may 
know our rights and our responsibilities. 

1 have said. Mr. Chief Justice and senators, all perhaps that 
ii becomes me to say in connection with the defence. For 

'i Long and patient attention I owe to senators, and I give 
to them, my sincere thanks. If it shall have been my privilege 
to throw any light upon the subject that for seven weeks lias 
engaged us in this investigation, I shall consider myself amply 
repaid for all the trouble and inconvenience to which I have 
been subjected. 

In concluding a long, wearisome discussion, memory recalls 
Incident of which the occasion seems to justify a passing 

It is but a brief space since, at the close of our late civil war, 
•i cloud of dark and threatening aspect hung over the southern 
hoi/-_.. IK 'ri ic cause, to uphold which four years of unequalled, 
heroic, sen- %cr ifi cm g efforts had been put forth, with its stained 
and tattered mit ^dishonored banner upon the field of battle, 
had gone do' u . n j u yiobd, iUK | the conqueror stood with uplifted 
Foot over th c form of his prostrate foe. 

At the inoi., lient f v i c t or y the president of the United States 


fell, stricken by the assassin's hand, and a spirit of vengeance 
was roused throughout the north. 

The bravest heart among us was appalled, and men knew 
not whether, in the madness of the hour, property and life 
would be demanded to expiate the offence of espousing the side 
of one's country. I had been honored by the suffrages of the 
people with a prominent place in the civil government of the 
Confederate States, during the entire conflict, and, well know- 
ing how obnoxious I had thereby become to the re-established 
national authority, looked forward into the immediate future 
with gloomy forebodings. "Treason must he made odious," 
was the fierce utterance which fell upon our startled ears from 
the lips of the successor of the fallen president ! " Treason 
must he made odious" was the echo back from the infuriated 
masses of the north ! What is to be done ? Who can help us 
in this emergency '. 

At this critical juncture, when every heart is despondent and 
Bad, a deputation of our most honored and trust-worthy citizens, 
few in numbers, and the respondent among them, are seen on 
their way to Washington on an errand of conciliation and 
peace. Their patriotic efforts are crowned with success, and 
the respondent returns charged with the trusts of a mediation 
between an offended government and an offending people. lie 
becomes, by appointment of the president, military governor, 
and is invested with almost imperial powers over the state. Pos- 
sessing the confidence of President Johnson, and bound to him 
by the ties of a common political maternity, his judgment 
becomes the unquestioned passport to executive clemency, and 
an application endorsed with his approval commands a full im- 
munity and pardon. 

It is as fresh in my mind as an occurrence of yesterday, 
though more than five years lias since elapsed, witli momen- 
tous events in the nation's history, when I entered alone the 
chamber below, from which this impeachment, even before hie 
conviction, has expelled the respondent, to ask his interposition 
and aid. I entered, the room, full well remembering that 1 had 


been a life-long political opponent, and had no personal grounds 
on which to ask or expect an act of favor, and yet I knew there- 
was no avenue to the ear of the president except through his 
provisional governor. My reception was kind and courteous, 
and my application endorsed without qualification, condition or 
terms, and soon a full pardon obtained and sent to me. 

That was my hour of darkness and trial, as it was of thous- 
ands more of the southern people. Since, as before, I have 
been a political opponent of Governor Holden, and, if his views 
of public matters remain unchanged, shall be probably during 
the few remaining years of life. 

I at a change has come over the state and its people, mighty 
and sweeping, and to-day he stands arraigned before a body, 
largely of my own political opinions and adverse to his. The 
strong man has indeed become weak, and the weak man strong. 
The sword over ours, now hangs suspended over his head. It 
is his hour of darkness and trial, and with confidence in the 
manly independence and integrity of a profession that never 
hesitates in the path of duty, he has sought the feeble counsel 
and aid of a political foe. That profession represented in us, — 
whatever of obloquy or reproach may attach to the faithful dis- 
charge of its trusts, whatever outside popular clamor may assail — 
in our conduct of the defence will vindicate and assert its 
true dignity and its just claims to the unimpaired confidence 
of the virtuous and good. We will not falter in our course nor 
forfeit the confidence which has been reposed in us. Common 
gratitude, if no higher consideration, would exact this of me. 
I have endeavored throughout the trial to act and speak with 
the earnestness and candor becoming the gravity of the oc- 
casion and the interests at stake. It has been my sole purpose 
to point out and present the merits of the defence, and if at any 
moment I have over-stepped the limits of fair debate, it has 
been, I assure you, unintentional. And yet I feel how inade- 
quate I have been to the task imposed. But my task is done, 
and graver responsibilities now devolve on you. Senators, it is 
a moment favorable to calm consideration. The tumultuous 


sea of part}' strife, whose tides have borne you into power, sub- 
sides into quietude, and the feverish excitements of the hour 
have passed away. Senators, you are judges now, partisans 
no longer, and it is for you to say if public justice demands 
the sacrifice of the accused. If so, the respondent, obedient to 
law and the decisions of its appointed judges, submits, unmur- 
muring, to a sentence that bows in sorrow, not himself only, 
but others also near and dear to his heart. Senators, judges, is 
this onlv alternative left \ 

The managers and their counsel demand condemnation. So 
demanded the managers of another prosecution, elsewhere 
tried, the conviction and condemnation of another son of our 
proud old state, in a more exalted station, where they charged 
him with the crime of interposing to save his mother land and 
her people from the avenger's wrath. In that trial, watched 
with the eager eyes of a nation from its inception to its final 
Issue, right and patriotism prevailed over prejudice and passion, 
and the voice of party was hushed in the presence of justice ! 
|n pronouncing his opinion, said a senator who, after a life of 
conscientious duty performed, public and private, has gone to 
his reward, and whose good name will go down to posterity, 
associated with a sublime act of moral heroism ; — " The people 
' have not heard the evidence as we have heard it. The re- 
sponsibility is not upon them but upon us. They have not 
" taken an oath to do impartial justice, according to the con- 
stitution and the laws. I have taken that oath. I cannot 
" render judgment upon their convictions, nor can they transfer 
M to themselves my punishment if I violate my own. And I" 
" should consider myself undeserving the confidence of that 
bist and intelligent people who imposed on me tin's great 
• responsibility, and unworthy a place among honorable men, 
' if for any fear of public reprobation, and for the sake of se- 
" curing popular favor, I should disregard the convictions of 
ly judgment and conscience. 

•' The consequences which may follow, either from convic- 
" tion or acquittal, are not for me with my convictions to con- 

24:38 court of nrpEAcmiEisTs. 

" sider. The future is in the hands of Him who made and 
" governs the universe, and the fear that he will not govern' 
" it wisely and well would not excuse nie for a violation of 
1 His law." 

And another,, not Jess eminent, and still upon the stage of 
active life, with not less emphasis, in the conclusion of his- 
opinion declares : " At the hazard of the ties of friendship and 
" affection, till calmer times shall do justice to my motives,, 
"no alternative is left me but the inflexible discharge of 
< duty." 

These are noble sentiments, eminent examples of judicial 
probity and high moral courage, worthy of imitation. 

Senators of North Carolina, may you., like Fessenden and 
Trumbull, forgetful of party strifes and party triumphs, rise 
to the dignity of the occasion and its grave responsibilities ; 
rendering a judgment which shall merit and command the ap- 
proval of your own consciences and of an enlightened and 
just public opinion, and bearing with you, from these Avails to 
the walks of private life, the solace of a well performed act of 
public duty t 



Senate Chambee, March 20th, 1S71. 

The COURT met at 11 o'clock, pursuant to adjournment, 
Honorable E. M. Pearson, Chief Justice of the Supreme Court, 
in the chair. 

Proceedings were opened by proclamation made in due form 
by the doorkeeper. 

The CLERK proceeded to call the roll of senators, when 
the following gentlemen "were found to be present : 

Messrs. Adams, Albright, Allen, Barnett, Battle, Beasley, 
Bellamy, Brogden, Brown, Cook, Council, Cowles, Crowell, 
Carrie, Edwards, Eppes, Flemming, Gilmer, Graham of Ala- 
mance, Graham of Orange, Hawkins, Hyman, Jones, King, 
Latham, Ledbetter, Linney, Love, Maimer, McClammy, 
Me Cotter, Merrimon, Moore, Morehead, Murphy, Norment, 
Olds, Price, Eobbins of Davidson, Pvobbins of Rowan, Skinner, 
Speed, Waddell. Warren, Whiteside and Worth— 46. 

Senator JONES moved to dispense with the reading: of the 

The CHIEF JUSTICE put the question on the motion of 
Senator Jones, and it was decided in the affirmative. 

Mr. BRAGG, of council for the managers, addressed the 
court. He said : 

Mr. Chief Justice and Senators: This is the forty- 
second day of this protracted trial, and I rejoice to be able to 
say. and no doubt you will rejoice with me in saying that it 
is now approaching its termination. To me has been assigned 
the duty of closing this discussion on behalf of the managers. 
All I regret is that the duty had not fallen to abler hands, 
especially as my physical condition has been such for several 
days as to hardly enable me properly to discharge it. 
In doing so I trust I shall conduct the discussion fairly. 
The managers ask at your hands for justice, and nothing 


more. I know that a great deal has been said in relation 
to this proceeding by several of the gentlemen who have 
appeared on the other side, which might indicate that possibly 
your minds would be so prejudiced that you would be unable 
to give the accused a fair and impartial trial. At one time you 
have been told that on a trial by political foes, ot a political 
foe, no moral effect would be produced by a judgment on your 
part of conviction. At another time it has been intimated to 
you that consequences of a serious character might follow in 
case vou thought proper according to your oaths and best con- 
victions to pronounce a judgment of guilty. In fact every 
possible appeal has been made not only to your judgment, to 
your fairness, and to your mercy, but even to your fears. Sena- 
tors, I have not the least doubt whatever that, notwithstanding 
all this, you will do as you have done heretofore — render a fair 
and ?ust verdict, as vou have given the accused a fair and im- 
partial trial. If he be not guilty under the articles which 
have been preferred against him, in the name of God and ot 
the people of North Carolina let him go free ; but if he be 
guilty, — why in the name of all that is right and just, prc- 
nounce him so, without regard to consequences. The expense 
of this trial, so far as the accused is concerned, is to be borne 
by the state. Upwards of a hundred witnesses have been ex- 
amined in his behalf. The utmost patience has been exhibited 
on the part of -the court in listening to every sort of defence 
that could be made for him ; and therefore when it is intimated 
that you will do otherwise than render a lair and impartial 
verdict, in his case, I must confess I have heard such intima- 
tions with some surprise. 

Senators, this is no party trial, no trial in which the politi- 
cal foes of the accused seek to obtain over him a political vic- 
tory, and punish him for political purposes. It is a trial in 
which the principles of civil and constitutional liberty, handed 
down to ns by our forefathers, are involved, and the question 
is whether those great principles are to be maintained or 
whether hereafter they are to be regarded as a mere mockery. 


Senators, have been told by learned counsel on the other side, 
that for the last ten years the great privilege of the habeas 
corpus has in a large portion ot the country been regarded 
and treated as a mere by-word. I confess to some extent it is 
so, although I say it with sorrow. But I ask of you, senators, 
is it not full time that that state of things should cease \ Is 
it not full time that examples should be made of public officers 
who have assumed to themselves powers and authorities not 
delegated by the constitution and laws ? And for one, I shall 
be proud if North Carolina in this first impeachment, as it is 
said, of a governor of a state, shall let it be known not only to 
the people here, but to the people in other states, and the 
whole world, that those great principles of liberty and law of 
which I have spoken are hereafter to be held sacred and in- 
violable. You have been told that, during the rebellion, 
while war was flagrant, while the life ot the nation, as some 
say, was at stake— a late president of the United States as- 
sumed to himself the power and authority to disregard the 
privilege of the great writ of habeas corpus. One of the 
learned counsel told you that in many instances he had done 
so without the assent oi congress. lie pointed you to the ar- 
rest of members of the legislature of a state, and to the arrest 
of individuals, the arrest and detention of a counsel who had 
merely applied for the writ to be sued out in a case of im- 
I prisonment under his, the president's, direction. I know all 
these things were done ; and, asked the counsel, was President 
Lincoln impeached? No. he was not. But ttat was a time 
of war andunder very different circumstances ; and whether 
President Lincoln was impeached or not, whether his acts 
were legal or illegal, censurable or praiseworthy, as sonic may 
say or think, it does not follow at all that the respondent, if 
he be guilty of the acts with which he is charged here, ought. 
not to lie impeached now. When he committed these acts 
five years or more had elapsed since the close of the terrible 
war through which we had passed. Is there never 1c be an 
end of these acts? Is bayonet law hereafter to be the law of 


the land ? Is despotism to stalk through the country at its 
will and at its pleasure to arrest, hang and otherwise maltreat 
citizens ? We are told that because these things had been 
done heretofore, under circumstances very different, that, there- 
fore, they are to be done again. If that be so, all constitution- 
al and civil liberty is at an end, and it is useless to talk further 
about it. Yes, senators, it is time that these things should 
cease. It is time that an example should be made. It is 
time that the people of this country should re-establish what 
was known as their constitutional rights and liberties before 
the unfortunate civil war which raged for four years, but 
which has long since terminated. 

Before I proceed to the discussion ot this case, it will be 
proper, I think, for me to state to senators what I consider to 
1)0 the legal grounds taken in the defence here, — the grounds 
upon which a verdict of acquittal is asked. In the discussion 
of these questions, I shall necessarily have to repeat a good 
deal of what has been raid before, and perhaps better said than 
I can say it. But I desire to do it in order to again present to 
your minds clearly and distinctly, as far as I am able, the points 
which have been made for the defence, and then I will follow 
with some on the part of the prosecution which I shall insist 
are involved in this case. I understand these positions to be 
assumed on the part of the defence : 

1. That the respondent was by law invested with a discre- 
tion ; that whatever he did was in pursuance of that dis- 
cretion, giverfty the legislature, and that he is not amenable to 
this tribunal for any of the acts charged. 

2. That by the Shoffner act, so commonly called, he was cm- 
powered to declare the counties of Alamance and Caswell in a 
state of insurrection ; that having done so the legal effect 
thereof was to set aside all civil law, including the constitution 
of the United States and the laws thereof, as well as the con- 
stitution and laws of the state; of North Carolina, and substi- 
tute, until the governor or legislature should declare the insur- 
rection at an end, what they call martial law, to be exercised 


and enforced by the governor of the state at his will and hie 
pleasure ; and that neither the judiciary nor any other depart- 
ment of the government could question such power by writs 
of habeas corpus or otherwise. 

3. That even if that were not so, the effect of declaring these 
counties in a state of insurrection was, in a legal point of view, 
to put all the people therein in the attitude of insurrection ; 
and that the respondent had rightful authority to arrest or 
cause to be arrested any and all of them, by military force 
only, and to detain them as long as in his opinion the public 
safety or interest required it ; and until that time the judiciary 
had no right to discharge any such prisoners by the writ of 
habeas corpus. 

4. That the effect of declaring a county in insurrection by 
the governor, under the Shoffner act, was and is legally con- 
clusive of the fact that such insurrection did exist, and connot 
be contradicted or called in question before this court. 

5. That though the acts complained of were unlawful, yet if 
they were necessary to be done, in the opinion of the respon- 
dent, to promote the public interest, he cannot be convicted on 
impeachment for doing them. 

6. That a criminal intent is involved in every offence ; and if 
the respondent honestly believed that he was acting legally, 
then he ought to be acquitted, notwithstanding the constitution 
and laws were in fact violated. 

7. That the respondent is not responsible for the acts of his 
subordinate officers, however improper or illegal they may 
have been, unless he directly authorized or knowingly suffered 
such acts to be done. 

Xow, senators, I submit to you that this is a fair statement 
of the legal positions taken by the counsel for the defence. It' 
it is not, then I am incapable, I confess, of making a correct 
statement of their positions of law. I have prepared this 
statement with some care. I have designed it to be correct, 
and I believe it is so. And I propose to say something in rela- 
tion to these positions before I proceed to lay down certain 


ones of my own, and to discuss the various questions involved 
in these articles of impeachment. 

The question was asked by one of the counsel, in reciting 
some cases of crime committed in one or other of the counlies, 
whether the senate were prepared to justify that I Ii you con- 
vict do you necessarily justify the outrages, or any of them 
that were committed in either the one or the other of those 
counties? That is not the question. Xo senator within the 
hearing of my voice, I apprehend, justifies or will attempt to 
justify any of these outrages. Certainly I do not. I condemn 
them all, from the greatest to the least, and I say that those 
who have committed them are yet amenable, and ought to he 
punished for them, and I believe that every member of this 
body is in accord with me in that sentiment. But that is not 
the question here. The question here is, admitting that offen- 
ces were committed against the law ot the land by others, wheth- 
er or not the accused himself, as the chief executive officer of 
the state, has not violated the law, and been guilty of great 
abuses in his office. 

But now, let us see how far these positions of law, laid down 
here by the defence are tenable. In my humble judgment not 
one of them is tenable to the extent claimed. It is to me 
amazing that the accused in his formal defence to the articles 
of impeachment, drawn up with care, prepared by able coun- 
sel, should have thought proper to insist before such a body as 
this that, assuming, under the Shoffner act, he had a dis- 
cretionary power to declare a county in insurrection, he is 
amenable to nobody, not even to this body, nor to any other 
department of the state government, for whatever offence he 
mav have committed — for whatever abuse of office he may 
have perpetrated, for none of the illegal acts with which he stands 
cluarired here, because he had the discretionary power to declare 
counties in a state of insurrection, and power to suppress such 
insurrection. Why, senators, that question has already been 
discussed in a measure before this body. That would make the 
executive ot the state, I was going to say, a tyrant. It would 


depend, perhaps, upon liis conduct, but certainly it would 
clothe him with autocratic power. Will it he seriously conten- 
ded that the legislature gave him, or had the right to give him, 
any such power \ From whence could he get it \ Certainly 
not from the constitution of the state, which defines and limits 
the powers of state government, the executive, the legislative 
and the judicial ; and all powers not delegated, it is provided 
expressly by the constitution, are retained by the people. Then, 
from whence comes this power \ Why it is a total mistake, a 
misapprehension of the principle laid down in the case which 
has been so often cited here — the case of Martin vs. Mbtt in 
12 Wheaton's Reports. There it was stated that an executive 
officer, the president, having the discretionary power conferred 
upon him by the constitution and laws to call out the militia, 
in certain emergencies and for certain purposes specified, the 
judiciary could not call in question the fact whether the emer- 
gency existed which authorized him to exercise that power. 
That is all ; but the officer exercising that power, it was held, 
would be amanable under the constitution for its exercise in an 
improper manner, or for its abuse. That is the true doctrine, 
undoubtedly. The judiciary, in the ordinary discharge of its 
duties and as another department of the government, could not 
call in question the exercise of that discretionary power at all — 
that is, as to whether the executive officer exercising it employed it 
on proper or improper occasions, or in a proper or improper man- 
ner. But in a court constituted like this, with power to try an offi- 
cer upon articles of impeachment for abuse of his office, with 
what propriety can it be said that the constitution does not itself 
provide for that state of things, as it was clearly held by the 
supreme court of the United States it did, in the case to which 
I have referred ? Oh, says one of the learned gentlemen on 
the other side, " That don't mean impeachment of the offenders. 
" It means by turning him out of office at the next election." 1 
Why, it means both, as every man of common sense, even with- 
out beim* a lawyer, must know. It means both ; and when your 
law provides that for any abuse in office, any abuse of powers 


given— and there is abuse — why undoubtedly the constitution 
intended, and the law intended, that an officer guilty of such 
an abuse should be held amenable by impeachment. Why, 
according to that, the governor, who has the power of pardofi, 
could not be impeached for a corrupt and improper exercise of 
that power. A judicial officer clothed with a discretionary 
power, as is often the case, could not be convicted for a corrupt 
and malicious or improper exercise of that power. I might go 
on and mention instance after instance, numberless, to show 
that such a position as is taken here by the accused cannot be 
sustained upon any principle of reason, of law, or of right. 

It is a little remarkable, senators, that in another branch of 
the subject it is assumed, and urged with like earnestness, that 
this power of the governor, given under that act, was not dis- 
cretionary, but was obligatory. You all remember it. An au- 
thority was attempted to be read by the learned gentleman 
who last addressed you [Mr. Smith,] to show that under certain 
circumstances the courts, in order to carry out the ends of jus- 
tice, will sometimes construe the word may in a statute as if it 
had been shall; and it was said, so construing the act, had the 
governor omitted to do what he did, he would have been liable 
to impeachment for not executing the Shoffner act. And he 
asked with some feeling, "Will the legislature command the 
chief executive officer of the state to do a thing and then im- 
peach him for doing it?" 

Now, senators, I submit to those of you who are lawyers. 
•Mid indeed to those of you who are not lawyers, that this was 
the position taken by the counsel for the respondent who last 
addressed you; and, strange as it may seem, it was urged and 
insisted upon, and authority cited to sustain it after, as it is 
within the memory of us all, the directly opposite position had 
been taken in the answer to these articles of impeachment, and 
elaborated in arguments by two at least of his associate counsel 
who had before addressed you— Mr. Conigland and Mr. Boyden. 

Now nothing can be clearer than that both of these posi- 
tions cannot be true. If the governor had a discretion given 


to him, by the act, under certain circumstances to declare the 
counties of Alamance and Caswell in insurrection, then it is 
very certain that no such provision made it obligatory upon 
him to do what he had a discretion to do or not to do. I sub- 
mit to you that the counsel was mistaken not only as to the 
construction of the act itself, but as to the application of the 
authority cited by him. 

But in connection with this part of the case, a matter has 
been brought into the discussion which it seems to me might 
as well have been omitted, I allude to the action of the 
present incumbent of the chief executive office of the state, 
touching the convention act passed at the present session ot 
the legislature, and which he declines to execute upon the 
ground that it violates the constitution. 

They say, " Would you impeach him for not carrying out 
or refusing to execute a law which he thinks to be unconsti- 
tutional, and yet impeach the accused, and convict him, for 
executing a law which it is insisted by his accusers was un- 
constitutional ?" The cases are not parallel, nor does the 
point made touch but a small portion of the case of the 
accused. Whatever may have been the duty of the present 
executive of the state, I shall not undertake to discuss now. 
I have my own opinions about it, and they have been sub- 
stantially expressed in certain resolutions now before the 
senate, which have been referred to by the counsel on the 
other side. There is, however, a marked difference between 
the two cases. One law is mandatory, the other is not. It 
I seems to me that no man of common sense can sav that it 
was obligatory upon Governor Holden to do what it is claimed 
the Shoffner act authorized him to do. Had he failed to take 
Mich action it would have been a matter for which he could 
not have been impeached. It was solely in his discretion. 
The convention act is mandatorv. There is the difference 
between the two cases. 

But it has been asked whether you will pass a Irw and then 
undertake to punish the governor for executing it ? Did 



this legislature pass the Shoffner act? A legislature passed 
the law. but not this one, and I shall have something to say 
about that hereafter. Now it may have been, and I shall 
endeavor to show it was so, upon another part of the case, that 
the governor and the legislature understood each other per- 
feetly well when the Shoffner act was passed. They knew 
its purposes. They had a common design ; and if the legisla- 
ture passes an act undertaking to- confer upon the governor 
of the state certain unheard of and unauthorized powers, and 
he is part and parcel of the whole transaction, while you can 
not impeach your predecessors, are you to be precluded from 
impeaching the governor cf the state who undertakes to ex- 
rcise these powers, and moreover exercised them improperly I 
By no means. So, I apprehend, there is nothing in that 
position; and that seems to me is the main one here upon 
which the respondent must rest for his acquittal. It is the 
doctrine that martial law existed, and all other law was at a;'. 
[, and that he was for the time being clothed with absolute 
power. There is no stopping short, when you take that 
position, that each and every part of the constitution of the 
United States and the laws of the United States, and th 
constitution of the state and the laws of the state, all— all 
cease to operate within the sphere or region of country when 
this martiaHaw prevails, during the pleasure ot him who is 
clothed with immense power — the power of martial lav.-. 
What is martial taw? Who has defined it I Who can tell 
what it is ? Why, so far as avc can get at it at all, it is the \vi ; 
of a commanding general, in time of war r within the lines of his 
army. That is it. One of the authorities read here quotes 
what the great Duke of Wellington said on the subject, that 
martial law was no law at all ; neither is it any law at all — it 
ie bat the will of the commanding general for the time being- 
But all authorities at least agree that it can. only be exercised 
in time of war — flagrant war — and not in such a state of thing- 
AS is alleged to have prevailed in Alamance and Caswell. Was 
there any war there 2 There was no war except that made 1> < 


the accused. "Was there any resistance to the armed force 
sent by the governor I None. Were there armies there 
opposed to each other? No. Not a hand was uplifted against 
the force that he sent there. The people were counselled to 
keep the peace, to submit for the time being to these outrages, 
and they did submit one and all. That was the true state of 
tilings. Offences against the law, I admit, had been committed 
there, but there was no war. Yes, sir, it is gravely insisted 
that the effect of the Shoffner act, coupled with the declaration 
by him that Alamance and Caswell counties were in insurrec- 
tion, was to clothe the governor of the state with these immense 
powers — the powor to set aside all constitutions and all laws 
during his pleasure; for one of the learned counsel insisted. 
when commenting upon a case cited by my learned associate, 
| Mr. Graham,] the Pennsylvania case, as it was called, that until 
the governor of the state, or the legislature of the state, had de- 
clared that the insurrection, so-called, had ceased, martial law 
continued; and he was compelled, log : cally carrying out his 
position, to say that the power included the right to suspend 
the privilege of the writ of habeas corpus as well as any other 
right of personal liberty secured or intended to be secured by 
the constitution — that the writ of habeas corpus itself, notwith- 
standing the decision of the chief justice of this state, did not 
run, legally speaking, to the counties of Alamance and Caswell, 
and he was necessarily compelled to take that position in order 
to sustain the one he had already taken, as to the existence of 
martial law, and by which he seeks to justify the action of tin 

Now, senators, this is an important matter. If that position 
be correct, then it is useless to talk about free government any 
more. It that doctrine is to prevail, constitutions are nut 
worth the paper they are printed on. But is it correct % It 
seems to me that to every man, lawyer or not lawyer, the 
simple statement of so monstrous a proposition is enough to 
show its absurdity and its untruthfulness. But I shall not be 
content with that. I shall undertake to show that by well 


settled law, by the decisions of our highest courts, and even by 
the authorities upon which the learned counsel relied to estab- 
lish that position, the position is a false one. And with regard 
to that allow me first to ask the question, "What is war ? There 
may be war between two foreign nations, and there may be 
domestic or civil war. I admit that when there is organized 
armed resistance to a government to overthrow it, and the 
movement is one not of mere resistance to law, or even of mere 
local insurrection against law, but assumes the proportions of 
war against the government, then it becomes civil war — war 
actually exists and is recognized as such, as was the case in our 
late unfortunate contest. Then the rules of international law 
apply to it, and it is recognized by them as a state of war. 
But who and what part of the government of this country is 
authorized to make war or to recognize a state of war as 
existing ? 

The counsel on the other side who discussed this question 
mainly, referred us to English authorities and claimed that his 
position was supported by them. Now we all know the crown 
of England is invested with the war making power, and not 
parliament. But under our American system of government, 
the president of the United States, himself, cannot make or 
declare war, but congress only has that power. lias a state a 
right to make war? It is expressly forbidden by one of the 
articles of the constitution of the United States. No state is 
allowed to keep on foot troops in time of peace, and in another 
part of the same paragraph, leaving out the part which is in- 
applicable here — "or make war.'' Congress alone can do 
that. No state can authorize it; no petty governor can 
do it without making himself amenable and impeach- 
able. Yet it is said we had a state of war in Alamance 
and Caswell counties. How ridiculous and absured to call the 

to of things which existed there a public war, so that martial 
law prevailed, so that the will of the governor became the law 
in these counties — nay outside also of these counties, in any 
portion of the state, where he choose to station his lawless 


force ! And if this principle can be established and the accused 
shall go free here now, God only knows where and how and to 
what extent the exercise of that power will not be hereafter 
attempted. I wish, senators, to call your attention to a few 
authorities on this subject. I read from Wheaton's Interna- 
tional Law, section 296, note 153. 

" belligerent powers exercised in civil war. — This question 
" has received a practical solution in a war on a vast scale — 
'• the great rebellion in the United States, of 1861. This was 
" not an insurrection of professed citizens for a redress of 
' : grievances, against a government whose general authority 
" they acknowledged, nor an insurrection or civil war for the 
" purpose of changing the government or dynasty of an ac- 
" knowledged common country. It was an attempt of a ma- 
" jority of the people in one section of the country to organize 
" themselves into a distinct and independent sovereignty, in 
" other words an attempt, by an act of revolution, to set up, 
• : within the previously acknowledged limits of a previously 
" acknowledged common nationality, and of a government 
" acknowledged to be legitimate, a distinct and independent 
" nationality. As a question of law the nation could not but 
" regard this as rebellion and treason. It was a political 
" question, whether it should be acquiesced in and the inde- 
" pendence of the rebels recognized or the rebellion be sup- 
" pressed by force. The rebels organized a government com- 
"plete in all its parts — legislative, executive and judicial — 
" and set it in operation over the region covered by the great- 
" er part of eleven states, and declared that they should re- 
'* gard any attempt to enforce the national authority within 
" their asserted limits as an act of international war ; treating 
" the United States as a separate nationality." 

So you will see from that what is a state of war, what consti- 
tutes a war, a civil war, between a government and a portion 
of its people, not a loose insuirection merely, opposing the gov- 
ernment or the execution of its laws, but an attempt to over- 
throw the government itself.. That constitutes a civil war. 


But the idea that a mere paper insurrection in the county of 
Alamance or Caswell — (every senator within hearing of my voice 
knows that in point ot fact there was no insurrection there 
whatever) — technically and in law constituted a state of war, is 
absurd. Call that a war ! — war between whom ? Who were 
the billigerent parties ? "War against the national government ? 
The evidence is that there was not the slightest opposition to 
the enforcement of its laws, or in any other respect whatever. 
War against the state of North Carolina? Not at all. The 
courts all open, the law in operation, and there was no re- 
sistance to civil authority. Offences against the law had been 
occasionally committed, it is true — some of them outrageous in 
their character, if gentlemen please, but yet that did not constitute 
a state of war. But I have other authorities upon that subject, 
and will read now from 2 Black's reports, [page 660,] and from 
what is commonly known as the Prize Cases, decided in 1SG2, by 
the supreme court of the United States. In that case it became 
a question whether certain vessels that had been seized after 
the proclamation of President Lincoln declaring the southern 
ports in a state of blockade, were the subjects of lawful seizure 
and prize. It was decided that there was then a state of war. 
The only difference between some members of the court and 
others was as to whether the proclamation of the president, de- 
claring that a state of war existed, was sufficient to authorize 
the seizure and condemnation of those vessels violating the 
blockade, until such a state of things had been first recognized 
expressly by an act of Congress — that is all. But as to the 
principles of international law applicable to a state of war, and 
to that onlv, there was no difference at all between the mem- 
bers of the court. I read from the opinion of Judge Grier : 

ki The parties belligerent in a public war are independent 
" nations. But it is not necessary to constitute war, that both 
" parties should be acknowledged as independent nationsor 
" sovereign states. A war may exist where one of the 
" belligerents claims sovereign rights as against the other. 

" Insurrection against a government may or may not cul- 


" minate in an organized rebellion, but a civil war always 
** begins by insurrection against the lawful authority of the 
" government. A civil war is never solemnly declared, it 
" becomes such by its accidents — the number, power and 
" organization of the persons who originate and carry it on. 
<: "When the party in rebellion occupy and hold in a hostile 
" manner a certain portion of territory, have declared their iu- 
" dependence, have cast off their allegiance, have organized 
" armies, have commenced hostilities against their former 
" sovereign, the world acknowledges them as belligerents and 
* : the contest a war. They claim to be in arms to establish their 
" liberty and independence, in order to become a sovereign 
" state, while the sovereign party treats them as insurgents 
" and rebels who owe allegiance and who should be punished 
" with death for their treason." 

That is a state of war. And again ; 

"As a civil war is never publicly proclaimed, eo nommn 
'■ against insurgents, its actual existence is a fact in our 
" domestic history which the court is bound to notice and to 
'• know." 

And again, from the same opinion, I will read a passage or 
two on page 073. 

" Under the very peculiar constitution of this government, 
" although the citizens owe supreme allegiance to the federal 
<; government, they owe also a qualified allegiance to the state 
" in which they are domiciled. Their persons and property 
" are subject to its laws. 

" Hence in organizing this rebellion, they have acted ay 
'■' states claiming to be sovereign over all persons and property 
' • within their respective limits, and asserting a right to absolve 
" their citizens from their allegiance to the federal government. 
" Several of these states have combined to form a new con- 
" federacy, claiming to be acknowledged by the word as a 
" sovereign state. Their right to do so is now being decided 
" by wager of battle. The ports and territory of each of these 
*' states are held in hostility to the general government. It is 


" no loose, unorganized insurrection having no defined hrand- 
" ary or possession. It lias a boundary marked by lines of 
' bayonets, and which can be crossed only by force — south of 
u this line is enemies' territory, because it is claimed and 
i( held in possession by an organized, hostile and belligerent 
M power." 

Why, senators, there was not even in Alamance or Casweli 
a loose, unorganized insurrecticm, having any definite oov/i 
dary or position, — nothing of the kind. And yet we are told 
that the state of things there was a stare oi war, and that all 
civil law was at an end, until it pleased the governor of the 
state to declare otherwise. I read still further from the opinion 
of another judge in that same nase, Justice Nelson, as to what 
constitutes war in a legal sense. 

" The legal consequences resulting from a state of war be- 
'• tween two countries at this day are well understood and will 
" be found described in every approved work on the subject of 
" international law. The people of the two countries become 
•' immediately the enemies of each other — all intercourse, coiu- 
" mercial or otherwise, between them is unlawful — all contracts 
" existing at the commencement of the war suspended, and all 
•' made during its existence utterly void. The insurance of 
" enemies' property, the drawing ot bills of exchange, or pur- 
" chases in the enemies' country, the remission of bills or money 
" to it are illegal and void. Existing partnerships between 
" citizens or subjects of the two countries are dissolved, and in 
" fine, interdiction of trade and intercourse, direct or indirect, 
" ts absolute and complete by the mere force and effect of war 
" itself. All the property of the people of the two countries 
" on land or sea is subject to capture and confiscation by the 
" adverse party, as enemies' property, with certain qualifications 
" as it respects propert}' on land." 

Now let us apply these principles to the people of Alamance 
and Caswell. Did they stand in the relation of enemies to 
the rest of the people of North Carolina ? Were all contracts 
made between a citizen of one of those counties and a citizen 


of another county void ? Was their property subject to seiz- 
ure and confiscation ? And yet, if the position taken by the 
learned counsel on the other side be true, all these conse- 
quences follow. And in that same opinion, senators, a case 
which has been referred to here as sustaining- the position 
which the gentlemen on the other side have taken — the case 
of Luther vs* Borden, is referred to and explained. The 
opinion in that case was delivered by Chief Justice Taney, 
who was also on the bench of the supreme court at the time 
these Prize cases where heard before that court, and he con- 
curred in the opinion of Judge Nelson from which I have 
read. Now let us see how that case is to be taken. What 
was the case of Luther vs. Borden ? It is stated and explain- 
ed here by Judge Nelson from whose opinion I have just 
read : 

" The case of Luther vs. Borden et al., [7 How., 45,] which 

" arose out of the attempt of an assumed new government in 

' the state to overthrow the old and established government 

" ot Rhode Island by arms. The legislature of the old gov- 

" eminent had established martial law, and the chief justice in 

"' delivering the opinion of the court observed, among other 

' tilings, that 'If the government of Rhode Island deemed the 

' ' armed opposition so formidable and so ramified throughout 

" ' the state as to require the use ot its military force and the de- 

'" 'claration of martial law, we see no ground upon which this 

li ' court can question its authority. It was a slate of war, and 

" ' the established government resorted to the rights and 

" ■ usages of war to maintain itself and overcome the unlawful 

" ' opposition.' " 

" But it is only necessary to say that the term ' war' must 
w> necessarily have been used here by the chief justice in its 
" popular sense, and not as known to the law of nations, as the 
"state of Rhode Island confessedly possessed no power under 
" the federal constitution to declare war." 

So I state here now, that the legislature of North Carolina 
possessed no power under the constitution to declare war or 


authorize the governor oi the state to do it. And I say further, 
in relation to that matter, that there could be no martial law 
rightfully declared or authorized by the legislature of Xorth 
Carolina at all. The cases were very different. In Rhode 
Island there was an armed insurrection, an effort to overturn 
the existing charter government by force. It was opposed by 
force on the part of the state. What kind oi a government 
and what sort of a constitution had the state of Rhode Island 
then ? Why it had no written constitution except what was 
<-:tlled the charter, granted by Charles II, simply authorizing 
them to establish a colonial government, undefined it its powers, 
unrestricted in many respects, and without those salutary pro- 
hibitions and safeguards which existed under our constitution. 
But how is it with ours ? Look to your bill of rights, see the 
provisions there expressed that the privilege of the writ <>t 
habeas corpus shll not be suspended. See the provision 
there that the military shall always be kept in strict subordina- 
tion to the civil power. See another provision that arrests 
.-hall not be made except upon warrants, taken out upon oath 
for probable cause. See the whole bill of rights ; then the pro- 
vision at the end of it, that powers not granted in the constitu- 
tion are reserved to the people. So, I say, there could be no 
martial law in North Carolina, by legislative enactment, none 
even in the qualified sense as prevailed in Rhode Island during 
what was called there the Dorr rebellion. But in point of 
l'act the legislature did not undertake to declare martial law 
here at all. They had no such power, and they knew it. And 
although they did assume very great powers, in some other re- 
spects, yet except by way of inference and argument insisted upon 
by the counsel on the other side, I deny that they attempted to 
exercise this power. They say that this matter of martial law 
necessarily results from what they did do. I say that no fair 
construction of the act would authorize any such conclusion, 
because such is not its language, and because it is to be sup- 
posed that the legislature did not intend to throw behind 
them all the provisions of the constitution intended to pro- 


tect the liberties, lives and fortunes of citizens. But they 
merely intended to do what they did do, when they said that 
the governor, whenever in his judgment life and property 
were not safe in any county, might declare that county in a 
state of insurrection. They did not intend, (it ought to be at 
least charitably so supposed,) to set at defiance all those pre- 
visions of the constitution which were designed as safeguards 
of the citizen to protect him in these very rights which they 
said it was their purpose to protect by conferring this discre- 
tionary power. But to return to the subject of war, and mar- 
tial law more particular!}". 

Perhaps I am piling Pelion upon Ossa with authorities upon 
that subject. But I will venture to read one more, (as Eng- 
lish authority has been cited here,) and that from a very ven- 
erable father of law — I mean Coke — as to what is war. 
[3 Thomas Coke upon Littleton, page 40.] He concluds the 
subject as follows : 

" Therefore, when the courts oi justice be open, and the 
"judges and ministers of the same may by law protect men 
" from WTong and violence and distribute justice to ail. it is 
" said to be time of peace. So when by invasion, insurrection . 
" rebellions or such like, the peaceable course of justice is dis- 
" turbed and stopped so as the courts of justice be, as it \v€ 
" shut up, ci silent leges inter arma, then it is said to I e time 
" of war. And the trial hereof is by the records and judges 
' { of the courts of justice ; for by them it will appear whether 
"justice had her equal course of proceeding at that time or no. 
" and this shall not be tried by jury." 

The same doctrine upon which I have been insisting is tor 
cibly laid down in the case of Milligan, which has been so 
frequently referred to here, and which there was such a stren- 
uous effort made on the part of one of the counsel on the 
other side to show was not law, but that the opinion oi the 
courts, strange as it would seem, was not only not the law <>t 
the land, but that it was the mere obiter dictum of the 
judges concurring in that opinion. 


Well, this is the first time that I ever heard the opinion of a 
court upon points directly involved in a case before it pro- 
nounced a mere obiter dictum. Now I have that case before 
me. I know a large portion of it has been read already and I 
would not trouble the senate with it again but for the elabo- 
rate effort that was made by one of the counsel on the other 
side to show that it had been entirely misapprehended, and 
that what we insisted upon here was not the opinion of the 
court but of certain judges thereof, and that it was not the 
law; that the question which they had undertaken to decide 
was not before them, was not presented, but that they had gone 
out of their way and decided a point not involved in the case. 
Is that so, senators ? "What was Milligan's case? I will dis- 
pose of it as briefly as I can. 

" Lambdin P. Milligan, a citizen of the United States and a 
" resident and citizen of the state of Indiana, was arrested on 
" the 5th day of October, 1864, at his home in the said state, 
" by the order of Brevet Major General Hovey, military com- 
" mandant of the district of Indiana, and by the same authority 
" confined in a military prison, at or near Indianapolis, the 
'■ capitol of the state. On the 21st day of the same month he 
" was placed on trial before a " military commission," con- 
" vened at Indianoplis, by order of the said general, upon the 
" following charges preferred by major Burnett, judge advo- 
" cate of the north-western military department, namely: 

" 1. ' Conspiracy against the government of the United 
" ' States.' 

" 2. ' Affording aid and comfort to rebels against the au- 
" 'thority of the United States.' 

" 3. ' Inciting insurrection.' 

" 4. ' Disloyal practices,' and 

" 5. ' Violation of the rules 'of war.' 

" Under each of these charges there were various specifica- 

Milligan was brought before a military commission and was 
tried and convicted and sentenced, to be executed, and that 


sentence was approved by the president of the United States. 
He sued ont a writ of habeas Gorpus before the circuit court of 
the United States, and his case being brought before that 
court, and there being a disagreement between the two judges 
holding the court as to whether he was properly or improperly 
convicted, or could be executed under the finding of the mili- 
tary court, as all lawyers know, upon that division of opinion 
between the judges, a decision by the supreme court of the 
United States was called for and was had in the year 1866. 

The trial and conviction were during the war when every- 
thing was in a state of heated excitement. These were the 
questions upon which the judges were divided : 

" I. On the facts stated in the petition and exhibits, ought a 
writ of habeas corpus to be issued according to the prayer of 
said petitioner ? 

" II. On the facts stated in the petition and exhibits, ought 
" the said Milligan to be discharged from custody as in said 
" petition prayed \ 

" III. Whether upon the facts stated in the petition and 
" exhibits, the military commission had jurisdiction legally to 
lv try and sentence said Milligan in manner and form as in said 
" petition and exhibit is stated." 

So you see, senators, that the whole ground was covered, and 
not merely that arising under this act of congress of 1863, 
which allowed a suspension of the writ of habeas corpus — I 
mean the act of congress which required, as insisted by Mr. 
Boyden here, among other things, that after a certain time of 
detention, if a court passed and the part}' was not brought be- 
fore that court and the charges against him inquired into, then 
he should be entitled to his discharge. In the meantime, how- 
ever, Milligan had been tried by a military court, and he claimed 
his discharge not only under that act, but the whole ground was 
presented whether under any circumstances — that act or other- 
wise — a military commission sitting as this did, had a right to 
try, condemn, and have executed, a civilian, a man not con- 
nected with the army of the United States. Xow the learned 


counsel, [Mr. Boy den,] says that nothing was in issue before 
the supreme court except as to whether this man had a right- 
to his discharge under the act of 1SG3, having been detained 
by the military in the meantime so that he could not get before 
the circuit court and that that was the only question involved ; 
that the court, in deciding upon the broad ground that martial 
law did not prevail in Indiana and authorize the trial, convic- 
tion and execution of this man by a military court, went out of 
their way and pronounced a judgment upon matters not in- 
volve;! in the case ! Therein he is totally mistaken, as any 
gentleman who will take the trouble to read the tacts of this 
case will see. Here in this volume of Wallace is the argument 
of counsel, occupying a hundred pages or more upon this very 
question among others, which was decided by the court. Well, 
what did the court decide? The first question raised in the 
supreme court was a question of jurisdiction. All the judges 
decided that the supreme court had jurisdiction. All agreed 
that the military commission had no right to try and convict 
him in the way they did. What was then the question about 
which there was some disagreement between the judges? 
Simply that the majority of the court held that under the con- 
stitution of the United States, even congress had not the power 
by any pretended law to authorize the trial and conviction of a 
man, situated as he was, by a military commission, whereas the 
minority of the court, composed of the chief justice and three 
other judges, said that although congress had not given such 
power — (that was expressly ruled) — yet that, in their opinion, 
congress in time of war, might give such power to try a civilian by 
military commission. That and other military commissions sat 
during the war, when the blood and the brains of men were in 
a seething state and had not cooled even when this decision was 
made. The majority of that court, however, has settled the 
law, as cited here, that not even the congress of the United 
States can by any law, even during a war, order a civilian to 
be tried by a military commission, but that every such man is 
entitled to a trial by a jury of his peers. That is a great prin- 


ciple of liberty which our forefathers incorporated into the con- 
stitution, and God forbid that it should ever be stricken out 
or silenced, or that the rights of the citizen under it should ever 
be impaired, diminished or taken away. 

But take the dissenting opinion of the minority of the court, 
relied upon by my friend, [Mr. Boyden,] and let us see whether 
it warrants him in taking the position which he has. The 
thief justice says : 

" We by no means assert that congress can establish and 
" a PPty the laws of war where no war has been declared to 
" exist." 

Mark that — that not even congress could do that. Can the 
legislature of North Carolina do it I Can the governor do it \ 

' ; Where peace exists, the laws of peace must prevail. What 
v: we do maintain is, that when the nation is involved in war, 
,; and some portions of the country are invaded, and all arc 
" exposed to invasion, it is within the power of congress to 
"determine in what states or districts such greatand imminent 
"public danger exists as justifies the authorization of military 
" tribunals for the trial of crimes and offences against the dis- 
w - cipline or security of the army or against the public safety." 

That is all. They, the minority, held that congress had 
not authorized such tribunals, and they have told you when in 
their opinion congress may do it, differing from the majority 
in that respect, which we submit is the safer rule — the rule of 
liberty and of law. 

We have had a great deal of English authority introduced 
upon the other side — as if it had, most of it, anything whatever 
to do with this case. Where is this power to besought for in 
this country \ In the constitution only. English authority, 
therefore, amounts to little or nothing upon questions of this 
kind. They have no written constitution defining the powers 
of government. The powers of that government are not lim- 
ited in many respects as in our American systems, national and 
state. The power of the crown is vastly greater than that of 
the president of the United States. So that much of the 


authority cited upon the subject under discussion amounts to 
nothing. It does not follow that what the king of England may- 
do can be rightfully done by the president of the United 
States, much less by a petty governor of a state. 

Now as to this matter being one under the constitution, I 
read further from the same dissenting opinion of C. J. Chase. 

" We have thus far said little of martial law, nor do we pro- 
pose to say much. What we have already said sufficiently 
" indicates an opinion that there is no law for the government 
" of the citizens, the armies or the navy of the United States 
•' within American jurisdiction, which is not contained in or 
" derived from the constitution. And wherever our army or 
" navy may go beyond our territorial limits, neither can go 
" beyond the authority of the president or the legislation of 
" congress." 

One of our friends on the other side [Mr. Boy den] has pro- 
duced, as one of the authorities relied upon here, Bishop on 
Criminal Law, which ho declared to be " very high authority," 
and so much was he pleased at what he called this high au- 
thority that, when the question of insurrection was discussed, 
early in the trial of this case, he insisted, as senators will remem- 
ber, that a whole chapter from it should be read to the senate 
notwithstanding it was stated then that it would be printed. 
He has again read it for your edification, and by this time, I 
trust, senators have it pretty safely fixed in their memories. 
Who is Mr. Bishop, that his opinion is to override the opinion 
of the judges of the supreme court of the United States ? A 
Massachusetts lawyer, I believe, but certainly unknown to 
fame. I never heard of him, I confess, though that may be 
my own fault, until I saw first this book of his. He writes a 
book on criminal law and publishes it. In it is this remark- 
ble chapter written during the war, no doubt, for the book is 
published in 1865. He tells you that these opinions that he 
puts in that chapter are his own opinions, and although he 
claims to deduce them from the constitution, they certainly 
differ widely from the constitution itself. He cites no authori- 


ty whatever. He refers not to any of the fathers of the con- 
stitution or to the learned commentators who hare written 
upon it — to Story or to Curtis or the federalist — but he 
tells you these are his [Mr. Bishop's] opinions. They maybe 
somewhat peculiar, be says, but nevertheless they arc his. 
He utters them, ho says, in no party sense — none whatever. 
Oh, no ! but yet they are very extraordinary opinions and ho 
seems to be aware of the tact. They were something new to 
the profession and they have never been recognized as law 
by any of the courts. Search this case of Milligan, decided 
■one year afterwards. Do you see Mr. Bishop cited or relied 
upon there, although the case was argued by several of the 
■st counsel in the land ? It seems to have b< • 'ded 

as the mere offspring of the heated season of the war, when, 
i we all know, opinions were put forward which would not 
bear the test of examination. Look at a later edition of his 
book, published since, with a reference therein to this decision 
in Million's case- — and as to which he seems to have been 
somewhat nettled. In the third edition of his work, note 1 
to the 65th paragraph, he says : 

" Since tl scussion originally appeared in the third edition 

*{ of the present work, the subject has been discussed before and 
"by the supreme court of the United States. Ex-parte Milli- 

an, 4- Wal. 2. There ape in this case various expressions to 
■ be found even in the opinions delivered from the bench not 
" ; in accordan ce with the doctrine of ray text Still I do not 
■■ think the text needs therefore to be in any wry modified, 
"while yet it is important to examine the case somewhat in 
" this note." 

And after such examination, with which. T shall not trouble 
you, he says : 

" There is much more which might be said about this case ; 
■" but the foregoing observations are sufficient to point to the 
"following conclusion concerning it. The court proceeded 
"throughout upon a misapprehension of the meaning of those 
• ' decisive statutory phrases which are a part of the fundamentals 


" of our language, and not of our language only, but of all 
"languages spoken by people who claim a share in the law of 
■" nations, which is the common property of all civilized people. 
»' The decision, indeed, if accepted as sound and followed here- 
•' after, overturns a certain part of the English language and 
" of the language of the universal law of nations ; and, with 
" it, a part of the law itself which is the common property of 
"mankind. The court is our supreme 'judicial tribunal," 
"and no more. If it were a 'lexicographical tribunal,' it 
" would perhaps have jurisdiction of this question. As it is, 1 
" deny that the decision is binding as law anywhere. See 
" Bishop First Book § 455, 456, Crim. Proeed. 1, §1039, 
-' 1045, Even if it had jurisdiction, the fact that this main 
"point of the ease was so evidently passed without a single 
-" real thought, and without so much as a glance into the au- 
" thorities, would render it on familiar principles, nearly 
" v ilueless as a future authority. I shall not modify my own 
" text t< • suit the new American — not English,. — which we find in 
- tins case. My readers havo the whole case before them in 
' the book of reports, and they can follow it as implicity as 
•• they choose." 

So, senators, you see who Mr. Bishop is, and what he thinks of 
the supreme court of the United States. lie thinks that he, 
Mr. BLhop, knows much better what the law is than they do, 
and he does not hesitate to say so, though not in the best 
fcemper, and that ts the " very high authority" with which my 
friend, Mr. Hoyden, is so much in love. But even that au- 
thority, extraordinary as it is, and the opinions uttered by hint. 
extraordinary as they are, apply only, as he himself says, to a 
otitte of war and not to a time of peace, and, as I have already 
shown, have therefore no application to our case. 

Well, they refer you also to the opinion of Mr. Bates, while 
attorney general of the United States, which is most extraordi- 
nary of all. I regret that any lawyer, especially one who is 
now in his grave, should ever have penned such an opinion as 
that. What is it % Why that there are three independent de- 



partments in the government of the United States ; that the 
president is one of them, and that he having in time of war exer 
cised the power — which the supreme court, by the by, has since- 
decided to belong alone to congress — of setting aside the privilege 
of the writ of habeas corpus and of arresting and detaining 
parties at his will, was the judge, solely, of what his powers 
were in that respect, and that no other department of the gov- 
ernment could call in question his exercise of such authority. 
Why, what is the judiciary for ? What are your laws in refer- 
ence to habeas corpus for ? For what was the great struggle 
in England for so many years against the crown, which claimed 
like authority ? What security has any man if that doctrine is 
to prevail — that whenever a war exists, the president of the 
United States may not arrest whom he will and detain them as 
long as he pleases, and that no oilier department of the gov- 
ernment can call his action in question ? And, gentlemen of 
the senate, that opinion is cited here as authority to show that 
the governor of North Carolina can do likewise, because it it 
was not cited for that purpose, for what other purpose, 1 pray, 
was it cited ? Yes, this extraordinary claim of power is set up 
here in connection with the pretended doctrine of martial law : 
and I say to you, senators, if such doctrines are to prevail, away 
with civil liberty, away with constitutional law; they are gone, 
they are worthless, and in their stead yon inaugurate the law 
of one man's will — the will of a despot. 

I have taken more time, perhaps, in the discussion of this 
question than I ought to have dono. I have done so because J 
wanted to show its utter futility and baselessness. I believe, 
too, that upon that position rested mainly here the defense <a 
the respondent ; and if we have overthrown that, as I think we 
have completely, then, in a legal point of view, the respondent 
has little or nothing left to stand upon. 

But this question is presented in a somewhat modified shape, 
in the next position taken by the counsel on the other side, 
and that is that the fact of declaring these counties in a state of 
insurrection was, in a legal point of view, to put all the people 


therein in the attitude cf insurrectionists, and that the respon- 
dent had rightful authority to arrest or cause to be arrested any 
or all of thfcm by military force alone, and to detain them as 
long at least as, in his opinion, the public safl ty or intere I 
required it ; and that, until that time, th ' iiciary had no 
right to discharge an) such pri era i; writ of habeas 
corpus. S u is that position ; correci know that it 

was ruled^by the chief justice, now pn i idi ig over this body, 
when thq habeas corpus eases were before hi tl , he could 
not inquire into the fact whother insurj ' I or did not 

exist; that sitting as a judge he was bound to take it that in- 
fection did exist, because he had no right to ion the 
fa , tl i it did, after a co-ordij I ich of the government, 
which, was. invested with a dii :retionary power to declare the 
unties in a state of im an \ '• 1, had cone so. But with the 
oilier pi sition which he took id it is with deference that I 
enter upon the discussion of that question) — I leg to enter here 
a respectful dissent. He held that the effect of it was to make 
every man, woman and child in those counties i rgents in 
point of law. I shall endeavor to show that it was an opinion 
ibrmed and expressed, perhaps, with little consideration, and 
not sustained, as I believe I can show, by tl . ry authorities 
noon which he relied for his decision, It ,■ . is to me that 
the mere .statement of this position is enough to cj li se one to 
doubt its correctness. The idea that by a mere paper de- 
claration of insurrection, every man, however im: t of any 
offence, in cither of those two com ' ; . an insur- 
rectionist, liable to be seized and detained, without civil 
process or probable cause shown, or evea without any charge 
made, is one that must strike very forcibly the mind of any 
man, whether he is a lawyer or not, as being- extraordinary. 
Is there any such technical rule of law? If so, when does it 
apply — does it apply to such cases as we have now under con- 
sideration ? Surely no rule of* municipal law in a state, — ■ 
lawyers will understand what I mean by that — creates any 
such state of* tilings. The error of the chief justice was in 

-1 — 


applying a well known principle of international law, arising 
only out of a state of public war, to the case before him, 
as I shall endeavor to show yon, but which had no proper 
application to a mere local insurrection in a state, (assumim;- 
that such insurrection existed,) winch had not assumed 
the proportions of a war. Now, in that opinion the chief 
justice bases himself upon the opinion of the chief justice 
of the United States in t 1 Mrs. Alexander Cotton Case. 
What was that ? Mrs. Alexander lived in the state of 
uisiana, upon the Red rive. Sh ■ w is there residing 

7 J. O 

(hiring the late war. She had certain cotton in her ] 
session. When the armies of the United States, under Gen 
eralBanl ] thei ■ lebr d campaign up that river, Mrs. 

:and r's cotton wa and it was carried to one of 

the western states, and there E r ■ '■ bo be med as a 

lawful prize of War. That was in tb ; '186 She m 
claim,- ' I righl lo, in the circuit court of I 

ited States. She cl he 1 I alv; --. been lc 

to the goven . of the " I States, in point of fact, 

the cotton wr. he i thai shehadl ' I ' i : . r bellion, 

. ' r cotton be confiscal 

The ca ' reme court of the United States, a • ; 

it was there held that the cotton was a sul if seizure : 

conden Eon prize, upon the groi \ sn • 

ists, as between the 1 " ch is an enemy to 

her, including all the in] >ective countri 

and as an incident of war accord] national law, the 

rty of the inhabitants of bl Lve actions, al 

events the pr ' ' ' who were called r 

was a subject of seizure and condemnati . not by virtui 
any act of cpi 1 ut upon thej les oi internatii i 

law as air reen belligerents in times of war. I wi 

to refer to that case. I re L9 of 2 Wallace — for 

it was upon this case alone that the chief justice in delivering 
that opinion based it : 

" It is said, that though remaining in rebel territory, Mr 


" Alexander has no personal sympathy with the rebel cause, 
" and thather property, therefore, cannot be regarded as enemy 
" property, but this court cannot inquire into the personal char- 
acter and disposition of individual inhabitants of enemy terri* 
" tory. 

" We must be governed by the principle of public law, so 
" often announced from this bench as applicable alike to civil 
" and international wars, that all the people of each state or 
,k ' district in insurrection against the United States must be 
" regarded as enemies." 

Now I put it to you, senators, whether the public law there 
referred to is not the law of nations, and whether it does not 
only apply to a state of recognized war between belligerents — 
whether that was not the meaning of the chief justice of the 
the United States, who delivered this opinion, and whether it 
could apply to such a state of things as existed in North Caro- 
lina, so as to put all inhabitants — every man, woman and 
child in those counties — in a state of insurrection, and make 
them public enemies and to be dealt with as such. Chief 
Justice Chase says we must be governed by the principle 
of public law so often announced from this bench, and he refers 
to the Prize Cases reported in 2 Black, and to the opinion of 
Judge Nelson, from which I have already read an extract, 
showing what were the consequences of a state of war, how 
each section of the country and their inhabitants became 
technically enemies, how all contracts and business ceased 
between them, how their property became liable to confis- 
cation and seizure — all resulting from a state of war. But 
I will, with your permission, now read a little more from the 
name opinion of Mr. Justice Nelson, which is referred to by 
Chief Justice Chase in the Mrs. Alexander case, and upon 
which his opinion in that case is based : 

" The ports of the respective countries may be blockaded, and 
'• letters of marque and reprisal granted as rights of war, and 
" the law of prizes as defined by the law of nations comes into 
" full and complete operation, resulting from maritime captures, 



jure belli. War also effects a change in the mutual relations 
" of all states or countries, not directly as in the case of the 
xi belligerents, but immediately and indirectly though they 
" take no part in the contest, but remain neutral, 

" This great and pervading change in the existing condition 
" of a country, and in the relations of all her citizens or subjects, 
'• external and internal, from a state of peace, is the immediate 
• effect and result of a state of war; and hence the same cede; 
" winch has annexed to the existence of a war all these distur- 
" bing consequences, has declared that the right of making 
" war belongs exclusively to the supreme or sovereign power 
" of the state. 

" This power in all civilised nations is regulated by the fun- 
" damental laws or municipal constitution of the country. I\y 
"our constitution this power is lodged in congress — congr* ss 
u shall have power to declare war. grant letters of marque and 
" reprisal, and make rules concerning captures on land and 
" water." 

And again he says: 

" "We have thus far been considering the Mdtus of the oiti- 
"zens or subjects of a country at the breaking out of a public 
" war when recognized or declared by the competent power. 

" In the case of a rebellion or resistance of a portion oi 
"the people of a country against the established govern- 
;t ment, there is no doubt, if in its progress and enlargement, 
" the government thus sought to be overthrown sec:- fit, it 
"may by the competent power recognize or declare the ex- 
ct istence of a state of civil war, which will draw after it all the 
" coi >e neaces and rights of war, between the contending par- 
" ties, as in the case of a public war. Mr. Wheaton observes. 
"speaking of civil war, 'But the genera! usage of nations 
" ' regards such a war as entitling both the contending parties 
'"to all the rights of war as against each other, and even as 
" k respects neutral nations.' It is not to be denied, therefore. 
" that if a civil war existed between that portion of the people 
" in. organized insurrection to overthrow this government, at 


"the time this vessel and cargo were seized, and if she was 
"guilty of a violation of the blockade, she would 
" prize of war. But before this insurrection against the estab 
"lished government can be dealt with on the footing of a civil 
"- war, within the meaning of the law of nations i the con- 
stitution of the United States, and which will draw after it 
"belli;., . trig it i ...t be recognized or declared by thi 
tJ war-making pi of the government." 

I tided insurrection in 1 ice and Caswell 

■ been n ized as war do that these tremendous 
. are t< ow \ Again it ie s> id ii 

.1 : 

i* sho . this can change the legal status of the 

lent or 1 ions of its < bi: m that of peact 

lc to war, or brinj into existen It) and 

"obi ns of 1 . . third parties growi g out oi : state oi 

Tne v::.- power 

li t of the government i peopl 
... titted. There i. 

s in this ] pect 1 etwet i . , 
i h to ki .. senators, < p< i - of yon 

wh i ■ to tl ession, whel ;■ — e be anytl 

• , I ic — (andlsh . . be willing evea to lay the matter 

before hi ■ \ tl stice now presiding, : 11 con 

ion,)— ; y, there was anyl q the circum- 

ices < unties oi ■ ce and ( i « U t 

brinj r thei consequences or : .'the con- 

l pu i or civil war, so ■ . .. . ich one 

, ,e parties i legally speaking, though not in iai 

i arrectio » be f;cizi ted by military 

authority, and th I regard to the fact whether, thej 

were guilty or innocent of an> i I ance. If that be so r 

must be because there was existing war then and there 

mi the sense known to the laws ot nations. It can only be 

1 from the principle of international law, as I have 

rtored to show, applicable to a state ot war only. Bui 


I have shown yen here that the state of Xorth Carolim 
cannot make war npon any of its citizens, that one prat of 
the people of a state cannot legally make war agai 
another part. The governor, I admit, has power under the 
constitution to call out the militia to sup] insurrection. 

He had those powers expresslj . ' u to him by the act of the 
legislature, if thai d add to his powei . .... the eonstitu 
lion. But to say thi hi proclan ion ] . ~. declared a 

state of war; to say that the effect of it was to put e 
in Alaraan . wel\ counties in t " ;. . 

breaker and insurrectic d at the i f the govej 

who chose to arrest him, is to sa hieh I think is i 

warranted by the law of the land and no 

hority whatever. W< ask in to tin 

■ ! oi these hal ^ cases, a ucl an be found 

to the action ot a - or of the United 
-j suppi 
overturn . . to resi ;t 

: on of some parti law or laws of 

Why. instance, 

i the time of Gen. "Washiu 
of the ger in 

What course, in the 

rces wer< lied out ; they w< I ion 

oi Pern ' t and armed i 

to the law ; but was i it all the peo] 

■ rent district were pul en< ... 

were they sated . No, the, 

•re or had been in rei 
men. They, or rather a portion of thei 
warrants issued by the district judg 
aided by the military authority, which w 
enforce the execution of the law. That was not th 
martial law or of military commissions. ■ 
of arresting men atthe point of the ba; nit warrant 

probable cause shown, merely because it suited the will oi 


gome man who was " clothed with a little brief authority." Such 
tilings were not done in the better days of the republic. 
Whether we shall ever know them again ; whether we shall 
ever see that state ot things restored, which every man must 
in his heart desire, depends somewhat, nay, very much indeed, 
upon the decision of this case. 

There is another position taken kindred to the one I have 
been discussing: that the effect of declaring the counties in 
insurrection by the governor under the Shofmer act, was and 
is legally conclusive of the fact that such insurrection did exist, 
and that it cannot be contradicted or called in question here. la 
that so? What authority is shown for it? None. 

It is said that the chief justice, now presiding here, when the 
matter was before him in the habeas corpus cases, decided that 
he sitting as a judge could not enquire into it, lie did so de- 
cide, and perhaps properly ; but whether so or not is not here 
material to enquire. But has he decided so here — that is, 
that this court of impeachment is in like manner concluded? 
No ; but in the progress of this case it has been virtually de- 
cided otherwise. You all recollect while the discussion was 
going on as to what constituted insurrection, and upon a ques- 
tion of evidence, and when it was objected on the part of the 
managers that in point of fact no insurrection existed, legally 
speaking, and according to the provisions of the constitution, 
and that the facts sought to be proved by the defence did not 
prove or tend to prove insurrection, it was said in reply : " It 
is proper, nevertheless, and altogether right to suffer these facts 
to go before the court upon the question of the intent and 
motives of the respondent." And it was, after elaborate dis- 
cussion, so decided by the chief justice, and the decision was 
acquiesced in by the senate. And the chief justice in making 
his ruling, which you will find at page 1-75 of your printed pro- 
ceedings, in substance said, that when the habeas corpus cases 
were before him, the question whether insurrection in fact 
existed was ruled out by him on the ground that the judiciary 
had no power to revise the action of the executive, but that it 


was competent for this court to do so, and to look into the 
official conduct of all the principal officers of the state. On 
the question of motives he ruled that the facts then proposed 
to be shown by the defence were competent, inasmuch as a 
criminal intent was charged upon the governor in declaring the 
counties in insurrection when there was none in fact, although 
such facts did not prove an open insurrection. 

The whole matter is and must be an open one for a court of 
impeachment. How can this court be concluded from en- 
quiring whether the governor of the state exceeded his lawful 
powers in declaring these counties in a state of insurrection ? 
How, under the law, assuming that hehad such power, would 
you get at him for an abuse of the power that was conferred 
upon him, unless }-ou could enquire into all the facts and cir- 
cumstances under which he put these counties or attempted to 
put them in a state of insurrection ? The proposition, it seems 
to me, cannot be maintained for a moment, and I dismiss it 
with these remarks. 

The next position is that, though the acts complained of 
were unlawful, yet if they were, in the opinion of the respon- 
dent, necessary to promote the public interest, he ought not to 
be convicted upon impeachment for doing them. Is that ;i 
legal defence ? The plea of necessity is set up — -the plea of the 
public good, whicli it is even insisted is superior to all law— 
that is set up here as a defence ; at all events if not pleaded by 
way of justification, it is offered by way of excuse. Bad m m 
have been ever prone to offer such excuses for their evil dee 
That is an admission for the time being, at least, that the res 
pendent has no law upon which to stand. "Who is to fudge ol 
this necessity? Who has invested the governer of this state 
with any such power? From whence does he claim to 
derive such power as this? As I have said before, you 
are told, " other public men have done such things. Hq acted 
" as he thought tor the best. He may have made mistakes, 
"he may have done things which he ought not to have done." 
Some of his counsel have said, "We are free to confess that he 


" has committed grave mistakes, but 3-011 should be merciful 
"and make allowances for the difficulty of his position, and 
" not convict him upon this impeachment." Another of them 
raid in substance, "He is one of the best and purest and wisest 
" of men. He has done much service to the state. He has 
" at least suppressed this insurrection, and put a stop to the 
" commission of horrid crimes." Has he? Well, I have not 
heard much about that lately, except from another quarter. 
There it is said it is not suppre ed, and that crimes of a certain 
] ind are hero an evervday thh ■ -1 while von are going on 

with ihe prosecution here, his excellency is in another place 
< 1 { .;. 1 in . tting up a prosecution against you and the peo- 
ple of thi i. For what ? His counsel have told you here 
tl i t he succeeded at least in putting down all these outrages, 
which now it seems are the subiect of so much indignation, 
real or pretended, el ewl re. 

~No\ i y such plea as thai -the plef of necc ity : I, ood 

thin ' add) If to your clemency and 

' b that yon were upon a jury — as you 

nan is charged with a heinous crime, say 

\ '.. e is pi n trial, and by way of defenc< 

," This man that nr client put to deatl wasalaw- 
■ k less, s man, s mi ce to the publi and ; p «t to 

" e >ci( ty. [t ' 'as i < essary that lie should be put out of the 
" way, and m client th< " ■< I k his life, honestly believing 
' that t] >Iic welfan required It." Do you think you could 

acquit thai 11 upon such pretences ? Would you not, by all 
the rules of j n ti< and of law, hold that he was guilty of mur- 
..■ ' grant that is a very tg case, an extreme case if 
y< u will, put by way of illustration merely, and to test a princi- 
ple. But I cannot forget that the respondent here stands char; 
with some very great outrages — outrages upon individual citi- 
zens, and yet more npon the constitution and laws of the state, 
by him knowingly aud wickedly violated time and again. 

If these charges be true, how can you excuse him upon the 
plea of good intentions ? There is a very bad place said some- 


times to be paved all over with good intentions. If they really 
existed on the part of the accused, as to which, however, I shall 
have hereafter something to say, then I repeat that it is a mat- 
ter which addresses itself to your clemency after he is convicted. 
You may or you may not subject him to all the pains and 
penalties of the law. But to say that he can set up any such 
excuses, true or false, by way of defence, is to go outside of the 
law. It would result in this — that every criminal, by erectin 
constituted tribunal in his own bosom, could excuse him- 
from any of the consequences of the violation of law. That 
would be simply absurd. Yet when you come to examine it, 
that is one of the positions taken and seriously insisted upon 
by the eouns€ . 'side, with what reason you, senators, 

mast decide. 

Again, it is said that before you can rightfully convict the 
■ | ondent, you must be satisfied and virtually so find that he 
had a criminal intent ; that a criminal intent enters into exvry 
'■ace, and that if ho had no criminal intent in what he did, 
you are bound to acquit him. Well, to a certain extent that is 
the law, but not to the extent claimed here. Even* man is pre- 
sumed to know the law. No man has a right, when arraigned 
for a criminal offence, to justify himself by saying that lie 
th light he was doing right and did not intend to do anything 
wr >ng; but he is held to be amenable for his acts. That, as 
every lawyer knows, is a general rule, and none other could be 
safely adopted. I know that in a certain class of cases referred 
to by the learned counsel [Mr. Smith] who made this point more 
particularly, corruption or malice or improper intent as regards 
their official acts is not presumed but must be shown. "What 
was the authority that he introduced ? Wharton's American 
Criminal Law. It will be remembered that the reference was 
to judicial officers only. The doctrine is confined to them, as 
appeared also in the two cases that were read from our own 
reports on the same subject. It is there laid down, and cor- 
rectly, that to convict upon an indictment a judge or a judic- 
ial officer of malfeasance in office, you are bound to show either 


corruption or malice, or something tantamount thereto— that. 
a mere mistake in the exercise of his authority will not be suffi- 
cient to convict him upon an indictment. But even in such 
cases corruption or malice may be inferred from the circumstan- 
ces oi the case. Bat has it come to this, that no man can be 
convicted of an abuse in office, unless it appears by possitive 
proof that he intended to do wrong? — that no man can be 
convicted for any excess or abuse of authority, provided he 
shall set up a defence that he was acting honestly and thought 
he had a right to perpetrate the enormities committed by him i 
In truth the modified rule above referred to, does not apply to 
executive officers, certainly not to the extent that is claimed. 
Suppose a sheriff, for instance, to have a precept against me ; 
1 make no resistance ; notwithstanding that, instead of arresting 
me in accordance with his authority and his duty, he knocks 
me down, ties me hand and foot, carries me off and puts me in 
jail: is lie not responsible civilly and criminally? Can he 
excuse himself by any such plea as is set up here? 

But I shall undertake to show you, senators, before I get 
through, that even assuming that such was the law, and that 
it applies in all its length and breadth to the governor of this 
state, yet that a guilty intent has been either positively proved 
or is to be presumed from the facts before you. The respon- 
dent is not that novice in legal and constitutional questions 
that the gentlemen would now have him to be, but, as you all 
know, is one who during the greater part of his life has devoted 
his time and attention to the study of such subjects. How, 
then, can he ask you to excuse him upon the plea of personal 
ignorance. We all know what the inference of law is upon 
the subject of criminal acts. A man kills another. Is he 
presumed to be innocent? No, he is presumed to be guilty of 
murder, of having taken the life of a fellow being with malice 
aforethought, until he shows to the contrary. So, wherever 
an act is done which is in violation of the law, the law infers 
a guilty intent until he who does the act proves to the con- 
trary. The burden of proof is upon him, as we all know. If 


he makes such proof and the act be such a one as the law 
excuses, he is excused. If the proof be such as only to palli- 
ate the offence, then it is palliated. But the law never pre- 
sumes that a man does an act in violation of the law inno- 
cently — never. Before I get through I shall endeavor to show- 
that the exculpatory circumstances relied upon here did not 
exist, and that upon each and every one oi these charges 
which are preferred here against him, the respondent ought 
to be convicted. 

As I said, senators, the last point which was made on the 
other side was, that the respondent is not responsible lor the 
acts of his subordinate officers, however improper or illegal 
they may have been, unless he permitted, authorized, or him- 
self suffered such acts to be done. Now with one qualifica- 
tion that would be true, if the respondent could bring himself 
within the facts of such a case, and that qualification is that 
unless he afterwards sanctioned what they had done. For if 
he sanctioned and approved of their acts it makes him just as 
criminal as if he had himself ordered them to be done. It 
would be as grave an abuse in office as the chief executive 
officer of the state could commit. But I shall have something 
to say about this when I come to discuss the facts. I shall 
endeavor to show that upon the facts of the case there is no 
principle of law which will excuse the respondent. I shall 
endeavor to show that he knew of many of these abuses ami 
outrages ; that he either ordered or connived at them, and that 
the very military force that he used was an illegal one ; and 
then I shall a«k the senate to say whether, under the circum- 
stances, the respondent is not responsible for the outrages 
committed by his subordinates. 

Pending the argument of Mr. Bragg, the hour of 2 o'clock 
having arrived, on motion of Senator Robbing, of Davidson, 
the court took a recess until 4 o'clock. 



The COURT re-assembled at 4 o'clock, Hon. R. M. Pear- 
Ohi Lee of the Supreme Court, in the chair. 

The < II proceeded to call the roll when the following 

ntlemen were found to he present : 

.' ■ ;. .' lams, Albright, Allen, Barnett, En tile, Bellamy, 

Cook, C '. < low! ;, Crowell, Ed- . ' ?, Eppes, Flermnii . 

mer, Graham of Alamance, Graham of Orange, Hyman. 

y, Love " • ] I ty, McCotter, 

Merrin 1 Murphy, Norment, Price, Roo- 

ts of Davidson, Robbing of Rowan, Skinner, Speed, Troy, 

: tell and Worth. 
On m : snator M imon, the court took a further 

recess until 7 o'clock in the even': 


RT re-assembled at 7i o'clock, Hon. R. M. Pear- 
. ice of the Supreme Court, in the chair. 

T!i 3 CLERK proceeded to call the roll of Senators, when 
the foil fcl smen were found to he present: 

Messrs. Ad .is, Albright, Allen, Barnett, Battle, Beasley, 
Bellamy, Brogden, Brown, Cook, Council, Cowles, Crowell, 
Currie, Edward:-', Eppes, .Flemming, Gilmer, Graham of Ala- 
mance, Graham of Orange, Hawkins, Hyman, Jones, King. 
Latham, Ledbetter, Lehman, Linney, Love, Mauney, McClam- 
my, McCotter^ Merrimon, Moore, Morehead, Murphy, Nor- 
ment, Price, Robbins of Davidson, Robbins of Rowan, Skinner, 
Speed, Waddell, Warren and Worth — 35. 

Mr. BRAGG then resumed his argument on behalf of the 
•managers. lie said : 

Mr, Chief Justice and Senators : Before proceeding 


further, I beg to return my thanks to tins body for extending 
to me the favor they have in postponing the discussion until 
this evening. 

Just before I closed what I had to say this morning in stating 
other points made by the defence. I had reference to one, and 
the last in the series, as to how far the respondent, or a public 
officer, was responsible for the acts of his subordinates. And 
I stated that, as a general principle of law, the propositions 
laid down by the counsel for the respondent were in the main 
correct, with a certain qualification, which I then mentioned. 
I did not at that time wish to be understood as saying, as I am 
informed is the impression with some, that the respondent had 
brought himself within that principle of law. On the con- 
trary, I intended to insist and thought I did say that he 
had not, and that upon the facts of this case he had totally 
failed to justify himself according to the principles of law 
as then enunciated. It was a mere statement ot an abstract 
principle of law which, with certain qualifications, I ad- 
mitted to be correct ; but I did not mean then to say, or by 
any means to admit, as some I understand supposed that I did, 
that the agency made use of by the respondent was a proper 
one. On the contrary, I intended to be understood that the 
agency of which he made use in doing the acts, for some of 
which we seek to hold him responsible, was an illegal one ; 
and that, thefefore, he was in any point of view to be held 
responsible for the acts of such illegal agents. And that brings 
me now to the discussion of the question, whether this military 
force employed by him, and as to which there is much con- 
tained in the several articles of impeachment, was a lawful oi 
unlawful force ; for if it was unlawful, why then the respon- 
dent does not bring himself within the principle of law that I 
have stated, but they were all violators of the law, the agents as 
well as the principal. 

Xow, as to those troops sent into Alamance and Caswell, 
and a part of them sent to other parts of the state, it was buf 
feebly insisted, as I thought, and I say it with all due respect 


to the counsel on the other side, that it was a lawful force — a 
part of the militia of North Carolina. "We all know that, by 
the constitution of the state, the governor is made commander- 
in-chief of the militia, and in order to suppress riot or insurrec- 
tion he is authorized to call out the militia ; and we know fur- 
ther that, in the Shoffhcr hill, commonly so-called, about which 
bo much has been said here, the governor was authorized to 
call out the militia of the state to suppress insurrection in any 
county when declared by him there to exist. Now, the ques- 
I i q is, did he do that, or did he set on foot a force which was 
unknown to the law, and in violation of the law? The consti- 
tution of the- state prescribes ot what the militia shall consist — 
of every able bodied citizen of the state between the ages of 
twenty-one and forty. None other can constitute the militia 
ae lording to law. But it is said that under this militia act oi 
1S6S the respondent called out such a force as that and none 
other. I propose to invite your attention for a short time to 
that question. It is insisted that under this act of 1SG8, section 
8, the governor had authority to call out this lores. It reads: 

'• The governor is hereby authorized to accept and organize 
lL regiments of volunteer infantry, not exceeding six, the same 
" to be apportioned as nearly as possible through the state, for 
" which purpose the state shall be divided into three division?, 
" to be known as the eastern, middle and western divisions, 
" which divisions shall constitute a major-general's department. 
"If in the discretion of the governor it shall be deemed ad- 
" visable, he may also accept and organize volunteer battalions 
" of cavalry, not to exceed three, and one volunteer battery of 
"artillery, the same to be equally divided among the dL 
■• visions named in this section." 

Now, I might ask, supposing these troops called out were 
volunteer militia, in the sense of this law, whether this force 
was taken from the three grand divisions of the state, or from 
any one sub-division of the state as the law required ? There 
is nothing of the kind to be protended. But what is meant 
by this volunteer force which is authorized to be embodied and 


kept on foot by the militia act ? Was it such a force as the 
governor raised and set on foot? By no means. This has 
been already made plain by my associate counsel. It was 
intended to be a permanent force — a permanent volunteer 
force, constituting a part of the state militia, and any gen- 
tleman who will take the trouble to look at our militia 
laws, as heretofore existing, will see thatt he same provisions 
as to a volunteer militia was contained in all those acts for a 
long period of time antecedent to the act of 1868. I have 
the revised code here before me, and in chapter 70, from sec- 
tions 51 to 60 inclusive, the same kind of force is authorized 
to be raised, not as a temporary force, but as a permanent part 
of the militia organization of the state. The same substantially 
is to be found in the statutes revised in 1S35, and for a long 
time before that. The same thing is to be found in the acts of 
congress of 1792 and 1795, providing for the organization of 
the militia of the several states, as will appear by an inspection 
of those acts. In other words, from the very commencement 
of the government this kind of force was authorized, not as a 
temporary one, not such a force as this Kirk regiment was, but 
as a part of the regularly organized militia of the state under 
the militia laws. Well, now, let us see what is Colonel Clarke's 
evidence on the subject of those troops. I beg to call the 
attention of the court to it. It will be found at page 1746 
and 1747 of the printed record. 

Col. Clarke, tells you that as a military man. he was sent for 
by Gov. Holden to advise with hiin as to the amount and char- 
acter of the force to be called out, and that he then understood 
he was to have the command of the troops, and. to use his own 
language, of the whole affair ; <; that he had a great contempt 
for the militia as ordinarily organized, and was unwilling to have 
it understood that he was a mere militia colonel, and that it 
was determined at his suggestion to designate them " state 
troops." The men were to be regularly enlisted, as in tin 
United States army, and individually sworn — that they were not 
to be drawn or drafted from any particular section of the state, 


but enrolled on voluntary enlistment, and that two regiments 
were so raised and mustered into the service of the state. 

At that interview, which was early in the month ot June, 
Col. Clarke further tells you that he heard nothing of Kirk or 
that he was to have any command, or that a force was to be 
raised irom east Tennessee, or from the mountains in North 
Carolina, and he further says by way ot reason for advising as 
he did, that he thought militia an ungovernable lorce, and 
unsuited for the purposes for which a military force was then 
wanted, and that he did not trouble himself with an enquiry 
into the legality of raising the troops, — he was not asked to do 
so, and he advised merely as a military man. 

The colonel went on to state many other facts as to the char- 
acter of these troops, and among other things that they signed 
regular articles of enlistment, modified only so far as to change 
the form of the United States soldiers' enlistment to that of an 
enlistment in the North Carolina state troops. And the adju- 
tant general, Fisher, tells us that these men were to be sworn 
in, and he supposed that they took the oath — the officers he 
knew did. Colonel Clarke tells you the same, and that the 
men were regularly enlisted to serve for six months, or until 
discharged. Such a force as that a part of the state militia ! 
It was a regular standing force, gotten up as any other army is 
gotten up, the officers and men all sworn, which is not required 
by law in the militia as to the men, although every militia 
officer who accepts a commission, as has always been the case, 
is required to take an oath of office. This act of 1868 as orig- 
inally passed, required the men also to take the oath, but that 
was afterwards amended and stricken out by a subsequent act. 

Now let us turn to the famous handbill of Kirk, which it was 
proved was written and caused to be printed by the respondent. 
It is to be found at page 283 of the record. And this, senators, 
has an important bearing, not only upon the question which I 
am now discussing, but upon other matters, going to show the 
motives by which the respondent was actuated after he had en- 
rolled and set on foot this illegal torce. You may recollect the 


terms of it. Perhaps it may be unnecessary that I should read 
it again, but I will venture to call your attention to it, although 
it may be fresh in your recollections : 

" Rally union men in defence of your state." Rally union 
men ? "Why, he should have said " Rally militia," if this was 
addressed to the militia forces. The law required him to call 
out the state militia composed of everybody liable to perform 
militia duty, not what he might choose to call union men only. 
So you see it was a select force he wanted. " Rally soldiers of 
" the old North Carolina 2nd and 3d federal troops." Are they 
militia ? '' Rally to the standard of your old commander." 
"Was he a militiaman? "Why he was not a citizen of North 
Carolina, and, therefore, could be no part of her militia. He 
was a Tennessean, as we have shown you here. I know it has 
been insisted by one of the counsel on the other side that not- 
withstanding the men were required by law to be citizens of 
the state, the officers were not, and that the governor might in 
organizing the militia, put officers over them from any other 
states. But with what reason and under what law ? I want to 
know if the officers of the militia are not a part ot the militia of 
the State as well as the rank and file ? I Want to know if the 
governor of the state can, at his pleasure, go outside of North 
Carolina and find officers and put them over the militia in this 
state? The law speaks of the officers as well as the men, and 
the officers are just as much a part of the militia as the rank 
and file. But to return to this remarkable manifesto : 

" Your old commander has been commissioned to raise at 
" once a regiment of state troops." Mark the words ; to 
raise a regiment of state troops, not a regiment of militia — not 
even a regiment of volunteer militia under the militia law. 
Those volunteers, under the act of 1868, were to bo composed 
of citizens of the state generally who chose to volunteer, but to 
be apportioned, by the express provisions of the act, among tin: 
grand divisions into which the state was divided, the eastern, 
the middle and the western. What did he want with these 
gentle lambs of Kirk ? He tells them, " To aid in enforcing 


" the law, and in putting clown disloyal midnight assassins." 
Well, that was a very pretty expression for the governor of 
the state. " The blood (says he,) of your murdered country- 
•• men, inhumanly butchered for opinion's sake, cries for 
" vengeance." ( >h ! tor " vengeance " was it. It was ven- 
geance that the governor wanted. " The horrible murders 
- and other atrocities of the rebel K. K. K. and southern 
" chivalry on grey haired men and helpless women call 
' in thunder tones." On the militia? No, but "on all loyal 
•• men to rally in defence of their state." " The uplifted hand 
"of justice — second and third federal troops — must overtake 
" these outlaws." And now for the finale. " One thousand 
•• recruits are wanted immediately to serve six months unless 
" sooner discharged." Is that militia ? " These troops will 
•• receive the same pay as United States regulars." Yes, that 
was the bait held out in order to induce this ragged rabble 
from certain localities in North Carolina, and composed largely, 
too, of desperate men from Tennessee and other states to 
'rally to the flag of their old commander," who was not a 
citizen of North Carolina, and known only to fame as a cruel, 
remorseless man. "Recruits will be received at Asheville, 
k - Marshall and Burnsville, North Carolina." Recruits! Let 
them come from any quarter whatever in or out of the state, 
provided they were men of the description wanted, they were 
welcome, and were to receive pay and emoluments at the 
hands of the state. 

Now, can it be pretended that this was a militia force ? Will 
any man in his senses say so? We say that they were not 
drawn from the militia force at all, as the act prescribed. We 
that many of them were under, and some over age, nearly 
or about three hundred of them my friend [Mr. Merrimon] 
states, and he has taken the trouble to examine these muster 
rolls. We say that a large portion of them were not citizens 
*>f North Carolina, at least two hundred of them, as the same 
muster rolls in evidence show. What business had they in the 
state of North Carolina? What right had the governor to 


recruit and organize a force of people who were not comp< — I 
of citizens of the state, and then call them militia '. Yes, I 
were "state troops,"" as he designated them, and raised as such, 
and not as ordinary militia, or even volunteers called out for a 
particular time or for a particular purpose. This force rai 
was in express violation of the constitutions of the Unh 
States and of the state of North Carolina. Article I, section 
10, of the constitution of the United States expressly ' 
any state to keep on foot troops, unless by the assent of tl 
congress of the United States, as it also forbids any state to 
make war, or do anything else of the kind than repelling an 
invasion when the danger is imminent. These powers are ex- 
pressly denied and refused to the states for the wisest of pur- 
pos s; 

Now, senators, I go further and say as to this matter tl I 
the governor of this state well knew, (and I will endeavor to 
show it,) that when he organized and set on foot this force, he 
had no right to do it under the constitution and laws of the 
state. A good deal has been said about motives, and that be; 
upon his motives. Let us see how that was ? I beg npw, 
therefore, upon that point to refer, senators, to the annui 
sage of the respondent to the legislature of November, 1 • 
Among other tilings he says: 

'• Under the present militia law the executive is com;' i 
" tively powerless to enforce the law." 

That I deny — emphatically deny. He then proceed : 

"These laws should be amended so a to give the executive 
■ the authority to embody promptly such a militia force 
" enable him to repress violence in certain localities, ain- 

" tain the peace." 

Remember that the act under which he now attempt I 
tify, the militia act, was passed the 17th August, L868. V, 
it is very evident that the respondent, at thetimeol i 
that communication to the legislature, did not think that he 
had power to embody such <■ as he did embody. He 

knew, therefore, that the militia act which authom or- 


ganization, as a part of the militia, of certain volunteer regiments, 
did not authorize him to embody a standing force. He goes 
on to show wherein the militia, as organized under that act, was 
not an efficient force for the purposes for which he wanted it. 

Again, on December 16th, 1869, he sends a special message 
to the legislature, partly on this very subject. I shall have 
occasion hereafter to use that more particularly, however, upon 
another branch of this discussion, but for the present I bring it 
to your attention as bearing upon this militia question and to 
show a knowledge on the part of the respondent that he had 
no such power as he now claims to have had, to raise these 
troops. He says : 

" Allow me, respectfully and earnestly, to call yom attention 
" to the necessity which exists for such amendments to the mil- 
" itia law as will enable the executive to suppress violence 
" and disorder in certain localities in this state, and to protect 
" the persons of citizens, their lives and their property." 

There he again calls attention to this same militia law. It 
is a clear admission and declaration on his part, that he had no 
•authority to raise such a force as this was. You see, senators, 
that this force was not only a force of the kind that I have sta- 
ted, but the respondent well knew at the time he was raising 
it, that he had no power such as he claims to have had. In 
1808 he admits he did not have it. In December, 1S69, he 
admits he did not have it ; and yet it is now claimed, contrary 
to the constitution and laws of the state, and contrary to the 
constitution of the United States, and to his own repeated ad- 
missions, that he had that power, and that he was acting legally 
in what he did. I submit to you, therefore, that it is manifest, 
beyond any sort of question whatever, that the whole of this 
force raised by him was raised in contravention of the law. 
There was a certain kind of militia provided in this act of 1868 
called " detailed militia," but any one who examines the act 
Avill see that this was a very different force. That required a 
certain number of men, upon application of certain officers in 
any county, to be detailed from the militia, not exceeding fifty 


to each member of assembly. That, he Bays, was not a force 
that would answer his purpose, although he had by the act the 
control of it, and might send it to any part of the state. It is a 
little noteworthy that in the return which appears to have been 
made to one of these writs of 'habeas corpus — the writ sued out 
by Mr. Turner before his honor, Judge Brooks, at Salisbury, and 
after there had been great complaint about the character of this 
force, and what they had done — after it had been held up to 
the country as an illegal force which the respondent had raised — 
I say that when Kirk comes to make a return to that writ under 
the advice, no doubt, of counsel, the return is that Mr. Turner 
was arrested by Lieutenant Colonel Burgen of the " detailed 
militia." He had become alarmed about that matter. . The 
force was then styled to be not "North Carolina state troops." 
but " detailed militia." That Burgen was ordered to arrest 
him "for alleged violations of law," and Kirk further stated in 
the return, "he is now detained on the charge of conspiring 
with divers other citizens of the state to overturn the govern- 
ment of the state of North Carolina. That was the vague and 
extraordinary return which was made and which is here upon 
your record. Now, it may be said that the respondent is not 
responsible for that. But it only goes to show how this thing 
as to the character of the force was shifting and changing. 

The matter had been complained of from the first. It was 
notorious. It had been denounced as an usurpation on the 
part of the respondent to raise and make nse of such a force 
as this. Casting about, then, to see where he could find si 
pretence of law, upon full consideration, satisfied by his ad- 
visers no doubt, that he could not sustain himself on the 
ground that this was li detailed militia," he then falls back 
npon this 8th section of the act of 18G8, and th< y are cal 
here now " volunteer militia." 

Now, I think that we have successfully driven them from 
that position, and every senator must see that it was neither 
ordinary militia, " detailed militia, " nor " volunteer militia." 
but a regular organized recruited force— a standing army. s<> 


long as it lasted — organized and equipped and set on foot 
by the governor for such purposes as he is charged with in 
these articles of impeachment. And therefore it is, senators, 
that I say he cannot justify here by alleging that these out- 
rageous acts, proved to have been committed by such a force 
as this, were not done with his assent or his procurement or 
Jus connivance. And many of them he has since directly 

Now what was the character of these troops? for that con- 
stitutes a part of the charges against the accused. We need 
not go into the details of the evidence on that subject, 

Col. Clarke tells you that lie had an utter contempt for the 
ordinary militia of the state. And no doubt he had, a thing 
by no means unusual with such military martinets. 

But it is with the force that this man Kirk collected and 
brought down upon the people, that we have more particular- 
ly to do. 

What was their character? What their discipline, conduct 
and behaviour? 

We have all heard here — many highly respectable witnesses 
have fully described what their conduct was; that they were 
a lawless band of desperadoes, headed and officered by men 
who were worse than they were, if possible — men who had no 
control over the rank and file whatever — men who were them- 
selves violent, and who did not feel restrained by any law or 
any decency. I know there has been some attempt heie to 
set up a character for some of these officers. You have heard 
the evidence. What does it weigh? Who were the men 
who especially testified as to Kirk ? Why men that belonged 
to the force which he commanded during the war. Three or 
four respectable witnesses here have told you what his char- 
acter was. Have you any doubt about it? It was notorious 
throughout the land. Well, how did it happen that Kirk, 
especially, was sent for to raise and command this force 1 Col. 
Clarke tells you that he knew nothing about it. It was un- 
derstood at the time he was here, early in June, that he was 


to command these regular forces. Ho refused to com maud 
the militia, or to be considered as a militia colonel. He 
wanted something higher than that, as he had an utter con- 
tempt for the militia of the state. He went off to Washington, 
and when he came back, lo ! and behold here was Coloni I 
Kirk and Lieut. Colonel Burgen— the last a man whom the 
learned counsel, [Mr. Smith,] says if he had had his deserts 
would have been shot — a sentiment in which I heartily con- 
concur. And yet he says the governor is not responsible at 
all for his acts. Well, we take it that when a public officer 
or a man undertakes to make use uf such agencies as these, 
he is and ought to be responsible for their acts. He is just as 
much responsible for their villanies as would a man be wh > 
should turn loose a wild beast in a community for the mis- 
chief it might commit. 

This, then, was the force which was organized bv therespo 
dent, officers and men, and sent abroad among the people '' 
North Carolina to put down a pretended insurrection. 

Senators, a great deal has been said about this Shofi'ner/act. 
The learned counsel who last addressed you in behalf m the 
defense, [Mr. Smith,] would not even insist that that law was 
constitutional. He said it was an unwise measure, and ought 
never to have been adopted. He would not say it was consti- 
tutional, but lie did insist, whether it was constitution; 1 .! or li- 
the governor was excusable for acting under it, and not only 
excusable, but he insisted it was his duty to act upon it. I 
shall not enter again into the discussion of the constitutionality 
"f that act. That question has been several time, i 
discussed before this body, and I think every senator win 
mind is open to conviction must have concluded a!: that 

the legislature in passing it violated the constitution, if tluit 
act is to be construed in the manner in which the d 
the respondent insist that it ought to be COE I and . 


But it is said that the respondent cannot be convicted for 
declaring counties in a state of insurrection under that act, I •• 


cinse he acted in good faith and honestly, and did not know, 
and as governor had no right to know, that it was unconstitu- 
tional. Now, let us see how that matter is. I shall endeavor 
to satisfy the mind of every senator, and I think successfully, 
that the accused was instrumental in passing that act through 
the legislature, and that when it was passed he knew that 
thereby the constitution of the state was violated, or would be 
violated if that act was carried out in the manner in which lie 
afterwards enforced it. And if so, I shall insist that these first 
two articles charging the respondent with falsely declaring 
those two counties in a state of insurrection are established, 
and that it is the duty of this senate to convict him on those 
articles as well as upon the others. 

How do I connect him with the passage of that bill? I 
shall do it by a certain train of tacts and circumstances which, 
when brought to the attention of this body and scrutinized, I 
think will be sufficient to satisfy every senator of the truth of 
the complicity which I charge. We have put in evidence the 
original bill as drawn and introduced into the senate. It was 
introduced on the 10th December, 1809. That original bill 
contained a clause authorizing the governor to call on the presi- 
dent to suspend, in this state, the privilege of the writ of habeas 
corpus. It was well known then, even to the respondent and to 
the last legislature, that that body could not suspend the privilege 
of the writ of habeas corpus, because there was an express prohi- 
tion against it in our own constitution. Hence it was that they 
incorporated into the original bill that provision. 13y whom 
was it introduced? By any man of prominence? Not at all. 
It was put into the hands of an obscure man, as is proved 
here — a man who was not capable of drawing such a bill. But 
it seems to have been carefully prepared by certain knowing 
parties, probably outside of the legislature, who understood 
what they were about, and what were the purposes of such 
legislation ? How do I connect the respondent with it \ I do 
it by tins same special message, to which I have already refer- 
red, which he sent to the legislature on the 10th December, 


I860, the same day on which this bill was introduced by senator 
ShofFner. I have read a part of this message to you relative to 
the militia. The recommendation as to that was part and par- 
cel of what was to be done. Let us see further. Although the 
message is couched in general terms, it cannot be doubted at 
all, taking into consideration all the circumstances connected 
with this transaction, that the respondent knew perfectly well 
that this bill had been prepared, and when, where and by 
whom it was to be introduced. lie says : 

" Since my last annual message, dated November 16, 1S69, 
" numerous outrages of the most flagrant character have been 
"committed upon peaceable and law-abiding citizens, by per- 
" sons masked and armed, who ride at night, and who have 
" thus far escaped the civil law. I have adopted such measures 
" as were in my power to ferret out and bring to justice all 
'•' breakers of the law, without reference to their color or ro the 
" political party or parties to which they belong, and I am sat- 
isfied the judges and solicitors in the various circuits have 
" been prompt, energetic, and impartial in the discharge of their 
" duties." 

Now, throughout the whole history ot these matters the re- 
spondent never was without seeming fair pretext for anything 
that he designed to do covertly. We have had a great many 
proclamations read here. He might be called, and called truly, 
the "proclamation governor." He never was at a loss just 
before an election to issue a proclamation calculated to subserve 
his party purposes or the purposes of those with whom he wafl 
acting. On the 12th December, 1868, just before the presi- 
dential election, as it happens, (for it is put in evidence by him,) 
there was a flaming proclamation issued of three or four pages 
of printed matter, to the effect that he was credibly informed that 
large quantities of arms had been sent to the state of North 
Carolina, and that there was on foot a design to break up the 
government. Have you heard anything more of that matter 
since? And yet such a proclamation as that was issued. 
Why ? Simply to alarm and create a false public sentiment 


iii and out of the state. Much of the troubles that we have 
been enduring since his advent to power, and they have been 
many, have been brought about by this very system of issuing 
proclamation after proclamation, not intended or calculated to 
put a stop to the things complained of, but rather to foster and 
keep them alive and thus to inflame one class of the commu- 
nity against another. The respondent has been held up here 
as above reproach in every respect. My eloquent friend before 
me, [Mr. Conigland,] passed upon him a studied eulogium. 
Well, it was all admirable in a certain sense, but then it was not 
like the original — as little so as Hyperion to a Satyr. During 
the time of his predecessor in office, Governor Worth, we had 
peace and quiet in the State. From the time of Ms advent to 
office our troubles commenced, and they have been kept up 
ever since, and have not yet ceased. They were brought about 
mainly by his action, and that of those who have been and 
now are his coadjutors — one class of the population of the state 
arrayed against another, for party purposes and party ends, until 
at last a condition of things was brought about which was 
the fruit, necessarily, of his and their action, as surely follow- 
ing as the night follows the day — a state of things rendered 
not only possible, but, I am sorry to say, inevitably resulting 
from a bad system of government badly administered. That is 
the simple truth and the whole truth of the story. Now 
the respondent may be one of the best of men, at least in 
the opinion of some, but this I undertake to say,, and say it con- 
fident ly, that his administration of the state government has 
been the most disastrous, on the whole, that ever occurred in 
North Carolina, and perhaps I might add in any state whatever. 
Her treasury beggered, her credit gorxi, her people impover- 
ished and ruined, and peculation and fraud, in high places and 
low places, stalking openly and unabashed through the land, 
and tolerated, connived at, if not participated in, by him. And 
yet he is held up here as a marvelously proper man, a man of 
virtuous deeds and lite, and whose hand, when clothed with 
almost imperial power, was never raised against an enemy, and 


who never struck a political foe when he had the power to 
strike. What a marvel of magnanimity ! "Well, if that he the 
opinion of some, let it be so. It is not my opinion, and I think 
it is not the opinion of unprejudiced men all over the state, and 
I might add outside of the state, wherever the respondent is 

But I am digressing from the subject which I was discussing. 
I was endeavoring to show that the real design of the respond- 
ent in that message was covered up. His purpose was to ob- 
tain the passage of the Snoffner act. His messsage came the 
same day with the bill. The bill, as I have said, had evidently 
been prepared before, and what was the action of the Senate 
after it was introduced ? The rules were suspended, and the 
bill rushed through, without any amendment or debate, passing 
its three several readings on that day. Did not the governor 
know of it? Had he not seen that bill before? Did he not 
know what its provisions were ? It seems to me, senators, you 
can come to no other conclusion. 

Well, it goes to the other house. There it meets with some op- 
position. A portion ot the political friends of the respondent were 
not quite so pliant and accommodating as those who happened 
to sit in this body. One of the counsel on the other side has 
read to us from the Standard a portion of the debate and cer 
tain proceedings upon that bill in the other house. Senator.--, 
I was a little surprised to hear the counsel give an account of 
what took place in the other house. I won't say I was gratified, 
but I did say to my friend who sat by me, [Mr. Merrimon,] in 
the language of the quotation which my worthy and eloquent 
friend, [Mr: Conigland,] who sits before me, used in hisspeech : 

"Now hath the Lord delivered them into our hands.'' 
(Laughter.) Yes, the bill was opposed there. One member 
said, "Why if that bill is passed you will inaugurate a civil 
'• war here. You will establish drum-head courts matial to 
try and shoot men." The counsel who read these proceed- 
ings did not read what was said on the other side. He did, 
howwer, call your attention to the fact that one memt) , 


Mr. Pou, of Johnston, a republican, offered an amendment 
that the military as thus to be raised should be held in strict 
subordination to the civil power. That is a part of the con- 
stitution — the state constitution prescribes and requires it. 
That was voted down. They succeeded, however, in striking 
out one obnoxious provision, and that alone — the provision in 
relation to the writ of habeas corjms. That was almost too 
strong for them to pass. My friend on the other side [Mr. 
Smith,] then asks, " What does this prove V Not, says he, 
that the ShofFner bill was constitutional but that the legisla- 
ture were thereby intending to confer upon the governor 
greater power than he possessed under the constitution or 
than they were authorized to grant. And he said that upon 
this debate, that being the construction of the bill, by its 
opponents, the respondent had a right to take it that that 
was the true construction of the act and to act upon it as the 
legislative intent, constitutional or not constitutional. That 
was in substance what he said — you heard it. Then I say, 
taking all that to be true, and doubtless the respondent was well 
informed of it, for it appeared in that paper which he read 
every day, his own organ — that is another reason why he 
knew what the purposes of this bill were and that it was in 
clear violation of those provisions of the constitution, so often 
referred to in this trial, touching the rights and liberties of 
the citizen. The counsel said that it was clear that the in- 
tention of the legislature was to give the bill that effect. 

Now, senators, that was the first time in the course of a long 
professional life that I ever heard it urged in an argument that 
what was said in debate on a pending bill should be used to 
show that the legislature knew that they were violating the 
constitution, and that a public officer, knowing the facts, should 
seek to justify his conduct on that ground. And yet that is 
the position, if I am not mistaken, taken by the learned counsel, 
[Mr. Smith.] lie has made, I grant, an exceedingly able effort, 
considering the nature of the cause which he had to defend, 
and if the defence has not proved successful, it has been owing 


rather to the cause itself than to any deficiency in the advocate. 

If, then, the respondent was instrumental in getting up that 
bill ; if he was duly apprised of its character and what trans- 
pired while it was pending in the legislature ; if he intended 
from the first to exercise the power which he did exercise under 
it after it become a law ; what becomes of all that has been said 
here as to his motives and as to his duty to carry out its provie 
ions — as to his believing he had the powers under the act which 
he afterwards claimed and exercised ? 

Therefore it is that I submit it to senators, that the charges 
contained in the first two articles of impeachment — that the re- 
spondent declared these counties in a state of insurrection 
when he knew thej^ were not in insurrection, are true, and that 
the senate ought so to find them. Xobody will pretend, I 
think, to dispute that every thing else charged in the articli 
is true, under the specifications as to illegality of this force, 
as to their conduct and behavior, and what they did as to the 
maltreatment of persons arrested; and connecting the respon- 
dent with the other matters charged in the way I have done — 
if I have been successful in doing that — it makes him guilty of 
declaring the counties in insurrection when he knew there was 
none, just as much as if he had done it without any color of 
authority whatever. 

I will pass on, senators, to some of these other counts ov 
charges — and in connection with them, also, I have a good deal 
to say as to the motives and conduct of the respondent. Arti- 
cle III is in relation to the arrest of Josiah Turner. As to that 
article, I might say that neither has the respondent nor the 
counsel shown any justification' or excuse. The learned coun- 
sel to whom I have so often referred, who last addressed you, 
said in so many words that he had no justification for it. An- 
other of the counsel, [Mr. Boyden,] did not pretend to justify 
it. Xobody, so far as I have heard here, has attempted to j 
tify it. But you are asked to excuse the respondent upon their 
statement that there was no evidence here that the respondent 
had ordered the arrest to be made. In making that statement, 



our friends on the other side have certainly forgotten a great 
deal of the testimony. The respondent himself says that he 
did verbally order the arrest of Mr. Turner to he made if he 
was found in the county of Alamance or Caswell. He admits, 
however, that after Mr.. Turner was arrested, he concluded to 
hold him, and did order his detention. In other words lu 
sanctioned what had been illegally done by his subordinate 
officer. "Was not that a. great, gross abuse. of his office '. Re- 
member that the county of Orange, where Mr. Turner was. 
seized, had not been declared 1 in a state of insurrection. He 
was seized without charges made, and without warrant or 
authority. lie was. hurried off from his family to Alamance 
county, and was thence carried to Caswell, where he was im- 
prisoned and grossly maltreated. He was afterwards brought 
back to the cousty of. Alamance- and immured in a filthy and. 
loathsome dungeon with a negro eon vict, who was there wait 
ing to pay the penalty of his life for an outrageous crime. All 
these things were known to. the respondent and yet he inter 
fered not Indeed lie says., after Mr. Turner was- arrested that 
he sanctioned Bis- detention. Thao makes him just as respon- 
sible as if he- had: ordered the* arrest or had admitted that 
he had ordered, ijjr in the first instance.. I shall' insist, sen-- 
ators, that lie did: order the arrest, and that it was made- 
up pursuance of his ortlers.. Why, do I say so? I say 
so, in the first place, on the testimony, of John C. Gorman,, 
who stated that he saw the respondent on the day of the 
flection in the court house in Raleigh ; that he heard him say,, 
t'ljeii and there, either that he had ordered the arrest or that he 
would order the arrest of Mr. Turner immediately, and he 
[Gorman] attempted to dissuade him from it. What else have 
we ? It appears that Mr. Tinner was arrested on the fifth of 
August — the day after the election. We have also certain 
mysterious telegrams which seem to have been passing about that 
time. Hancock, the commanding officer at Ilillsboro', on the 
filth, telegraphs his superior officer, Burgen, at the Shops, that 
he has a matter of great importance to communicate, but that 


lie cannot do it without a violation of orders. Unfortunately, 

the telegrams at the Shops were spirited away just before they 
were sent tor. The respondent knew, however, that he was 
charged with having this arrest made. lie could have pro 
duced parties here to show that they had no orders if the fact 
had been so. It seems, however, that on that day one of these 
men, Ilunnicnt by name, was sent down from the Shops with 
a file of men to arrest Mr. Turner. What did he say there ? 
He was one of the agents of the governor. He tells senator 
Graham, immediately after the arrest, "I arrested him by the 
"orders of Colonel Burgen, who directed me to do it purscnnt 
" to an order received from the governor to that effect," nn< I 
lie added, "I have seen the order." Is there any doubt about 
that ? And yet we are told that there is no evidence that the 
respondent had caused Mr. Turner's arrest. All the evidence 
croes to show that he did it ; and all the evidence, so far as we have 
it here, goes to show that he directed it to be done at the time and 
place where it was done, and he himself avowed, after i \ was clone, 
that he sanctioned it. According to every principle of law it makes 
him amenable for the act. Was there ever a grosser violation 
of duty, a greater abuse of official power on the part of a gov- 
ernor or a public officer than this was? I care not what may 
be said as to what had passed before that arrest between Mr. 
Turner and Governor Holden ; that has nothing to do with it. 
Says the learned counsel, [Mr. Boyden,] Turner had invited an 
arrest. Suppose he had. Does that justify the governor or 
even excuse him? Did that justify or excuse such an outrage 
as this? — a violation of the constitution of the state and <■! 
every principle of law, that he had sworn to. observe? By no 
means. And yet he detains Mr. Turner in the manner which 
I have stated up to the very lost moment when he was die 
charged by Judge Brooks. 

Senators, I am satisfied what your judgment will be on tin's 
charge. It cannot be otherwise than that he is guilty. On< 
of the counsel on the other side spoke of this arrest and treat 
u;ent of Mr. Turner in a tone of merrinient. My venerate, 


friend, Mr. Boyden, said : " Why suppose lie did put him in 

" this dungeon with a man who was to he hanged, it only 
" afforded him an opportunity of giving some ghostly advice 
" to the condemned criminal. And after he was discharged 
" and came down to Raleigh, it gave him an opportunity of 
" being welcomed here and having a great to-do made over 
" him by his Kuklux friends." Well, senators, I have heard a 
good deal of that sort of language before. I have been con- 
nected with these matters growing out of the Kirk campaign 
in some degree ever since their commencement. And when 
my learned and elderly friend, [Mr. Boyden,] spoke of " Kuklux 
friends," I could but have vividly recalled to my recollection 
the state of things that existed here in the month of July last 
year. Then it was common to denounce my friends here who 
sit beside me, and myself and Judge Battle and Mr. Moore, as 
" Kuklux lawyers." I trust my friend has not forgotten it. 
He was then, as he is now, of counsel for the governor. In 
that day, when everything seemed to be goin^ on swim- 
mingly, before the election had taken place, and when his ex- 
cellency was on the full tide of successful experiment, it was 
common to say to us in his organ, the Standard, in staring 
capitals, almost daily, " Beware ! beware !" and what the learned 
counsel on the other side said about the reception of Mr. Turner 
here by his "Kuklux friends" has reminded me of that very 
pleasant state of things existing here when every man who 
undertook to raise his voice in behalf of constitutional liberty 
and law, did it, not only at the peril of denunciation, for that 
amounts to very little, but at the peril of having his own liberty 
put in jeopardy; and I say to you now, senators, that if that 
election had resulted differently, and if instead of your sitting 
here as you are to try the respondent upon the charges brought 
against him, things had gone otherwise, as he hoped and no 
doubt expected, I am not so sure that my associates and my- 
self especially, and perhaps the other gentlemen associated with 
us at that time, would not have been placed in the same con- 
dition that Mr. Turner was. Amidst all this strife the people 


kept quiet, but they thought their day was coming. They 
thought the time would arrive when they would get redress, 
not by arms nor by force, but by that silent though potent 
means, the ballot, when justice would be done, and when those 
in high places would be brought to account at the bar of pub- 
lic justice for their evil deeds. That is all I have to say upon 
that charge. 

Now, upon the next. That is of a similar character. It 
charges the illegal arrest and detention of sundry good citizens 
of the state by this military force that was illegally raised and 
set on foot in the manner I have stated. But those arrests 
were made in those two counties which had been declared 
in insurrection by the respondent. Well, how stands the 
case as regards them ? Can the respondent offer any excuse 
for his conduct ? At whose instance and by whose orders were 
these arrests made, and who were the parties thus arrested '. 
Why, many of the very best citizens of North Carolina, and 
not afew of them, asyou know, of prominence and position, were 
among the number — men who were not connected and never 
had any connection with these secret organizations, or anything 
whatever to do, direct or indirect, with these alleged outrages by 
disguised persons, as the evidence conclusively shows. I say 
that these arrests, at least in the outset, were made by the 
direct orders of the respondent himself — that he furnished the 
names of the parties to be arrested, and that Kirk was but the 
instrument of their seizure and imprisonment, and in the inflic- 
tion of the gross indignities which they Buffered. Why do I 
say so '. I will endeavor to show you. 

Remember that this force was gotten up in the latter part of 
June and early in July. Kirk and Bnrgen were found to lie- 
here about the 20th of June. This military movement, accord • 
ing to the evidence, had been determined upon about the 
first week in June. Why and for what purpose was it so de- 
termined ? I had intended to say something upon that subject, 
though perhaps it would have come in more properly in 
an earlier part of this discussion, but I will advert to it prea 


ently. The respondent declared the county of Alamance in a 
state of insurrection on the seventh of March. He was au- 
thorized by the Shoffner act to call out the militia to suppress 
Such insurrection, and the constitution gave him power, when 
insurrection existed, to call out a sufficient body of militia to 
•suppress it and put it down. Now I will not undertake to 
way that when parties are actually in arms as insurgents or in 
insurrection, that the governor of the state, when he calls out 
the militia, may not cause the arrest of men under those cir- 
cumstances, although it would be his duty to deliver them 
over to the civil authority as soon as need be, and not detain 
them at pleasure. But I undertake to say this, that where 
tluTe is no insurrection of the kind, no force embodied or in 
arms, actual or threatened, under no such circumstances is he 
authorized to arrest any man except by due process of law for 
probable cause, and upon a magistrate's warrant. Those were 
the means pointed out by the constitution, and if necessary he 
Was authorized to use the military in aid of the civil power. 
These men. however, "were not insurgents in arms, requiring, 
as one of the counsel alleged in this discussion, that the gov- 
ernor should act promptly and not wait. At least tLe question 
was asked what would be the duty of the governor under cir- 
cumstances of that kind ? I concede that under such circum- 
stances, a3 in the case of a peace officer who sees parties in the 
aet of violating the law, he has the right to arrest them* But 
alter the illegal act is done, I submit to you, especially to those 
of you who are lawyers, that a peace officer must resort to the 
regular process of law; and so must the governor. Did the 
respondent do anything of that kind ? Nothing whatever. 

But I asked just now, how was it that this force came to be 
raised ? It seems there was a meeting of prominent political 
gentlemen here about that time. They were casting about for 
something to be done. The state election was near at hand. 
The political party to which they belonged was in imminent 
danger of overthrow, as every one within the hearing of my 
twice knows. Consultations were held; it was agreed upon 


that something must be done. There was no necessity at that 
time for these troops. The governor had procured United 
States troops to be sent to Alamance. The evidence shows 
that violations of the law, secretly and by disguised persons had 
ceased there. It is true tliat in the county of Caswell there 
had been two homicides committed after that time and some 
ifcwo or three persons chastised for alleged barn burnings or 
'thefts, but the whole number of the offences proved to have 
; been committed in the county by parties known or unknown, 
^vere not more than five or six. The great mass of the people 
in that county were in a state of perfect quietude, Some barns 
had been burnt ; larcenies had been committed, and it was 
alleged that some of the parties charged with -such offences had 
been whipped or punished ; but not until the Sth day of July 
did the respondent declare the county in a state of insurrection'. 
All this was doubtless done pursuant to an arrangement en- 
tered into here on or about the first week of June. Why did 
not the governor call his council together to advise him in this 
important matter ? Why did be not consult with some persons 
whose opinions were worthy of being considered ? Why did 
he consult only with senators Pool and Abbott, and other men 
of that slass? It is worthy -of remark, too, that in both <A 
these counties a sufficient force of United States soldiers had 
been stationed before this Kirk invasion, and order and quiet 
prevailed. The insurrection, if you choose to call it an insm- 
rection, had been suppressed. In fact it never existed, except 
in name. The president had been called upon and a large 
military force had been sent to INTorth Carolina and stationed at 
different points of the state. This was a part of the programme. 
to overawe and silence the people of the state. They came 
expecting to find a civil war in existence, from what had gone 
abroad throughout the country, but which turned out to be a 
great mistake — at least they found it so when they got here. 

Such was the state of things when this force under Kirk was 
ready and the governor prepared to enter upon the campaign. 
What do we hear next \ Then comes the governor with one 


of his proclamations, that proclamation called the "Kuklux 
Klan proclamation," in which he rings the changes upon those 
words, and in which he enumerated many often ces that nobody 
had ever charged before to have been committed by the Ku- 
kltix Klan. All these were paraded before the public and for 
what purpose ? Why nobody at that day, and nobody now re- 
gards such a proclamation in any other light than as intended 
to effect the approaching election. On the 1 3th of July we 
find that Kirk, with a portion of his command, is at the town of 
Company Shops, in the county of Alamance, and there the 
men are mustered into the service of the state. Simultaneously 
an order goes out from the respondent directing Kirk to pro- 
ceed to the town of Yanceyville and take possession ol the 
public buildings there and to take military possession of the 
county. What next % Why, upon their arrival there, not- 
withstanding there is no sort of opposition shown to them 
whatever, in a public meeting which was being held and ad- 
dressed by the candidates for congress, Kirk makes an entry 
with his armed torces into the court house and commences 
seizing and does seize many of the most respectable citizens 
of the county. Was there any charge against them ? None 
whatever, except that they were prominent men and belonged 
to a different political party from that of the governor. Did 
he direct their arrest? I say lie did, and not only 
their arrest, but the arrest of others in the county of 
Alamance for similar reasons. Neither Kirk nor any of his 
men, except a few negroes, knew any of these parties, 
but the whole thing is made manifest by a part of the secret 
correspondence which took place between the respondent and 
this man Kirk, not found in his letter book where it ought 
to be found, but picked up in the court house at Graham, 
after he had left there, in the room which he had occupied. 
One of those letters was written as early as the 17th of July, 
another one on the 27th of July, and another on the 30th of 
the same month. Why were not these letters on his letter 
book ? It has been stated to you here, and stated truly, that 


not a letter appears on his letter book to this man Kirk, except 
one, and one telegram, and that one letter tohim also passed 
through the adjutant-general's office. Where is all this cor- 
respondence, for correspondence there must have been ? How 
did it happen, and who contrived that this man Kirk and his 
chief officers who resided in East Tennessee, should be found 
here about the 20th of June ? Was he not written to ? By 
whom ? Who consulted with the respondent, who advised 
him ? Colonel Clarke tells you that he knew nothing about 
that. It was advised no doubt by that little cluster of poli- 
ticians which, I have stated to you, were here about the first 
week in June, and who it is proved were in consultation with 
the respondent. 

I say that the respondent directed the arrest ot John Kerr 
and others. I say that it was so stated in one of these letters. 
I say that while nothing of the kind appears in the order which 
he issued through his adjutant general, directing Kirk to pro- 
ceed to Yanceyville, yet about the same time he privately fur- 
nished Kirk with a list of men to be arrested. He says in that 
letter, " the next list of persons who are to be arrested will be 
" handed to you by the judge advocate"— meaning of course of 
the military commission by which he intended to have them 
tried— thus showing that the first list had been furnished by 
himself. Kirk said to Judge Kerr, " I have nothing against 
" you; there is no evidence against yon ; I should not have ar- 
" rested you, but I was directed to do it by the governor. My 
" orders were to do it." Another one of these gentlemen said 
the same thing. Doctor Yancey, the coroner of the court, and 
sheriff Griffith, were also of the party that the governor direct- 
ed should be arrested. Here, too, were the aged Doctor Roan 
and Mr. Bowe, the last a venerable citizen who had been 
especially recommended to the respondent by Mr. Donahoe, 
to whom he had written as to the state of things in the county, 
as a man having the entire confidence of the community, and 
who would do justice between the races there and to the public, 
and who could do a great deal towards quieting any disorder 


that miglit exist in the count}-, if clothed with authority to 
firiterpose his good offices for that purpose. But he is one of 
the first men the governor of North Carolina ordered to }yt 
Arrested, and was arrested under circumstances of marked 
indignity. "Was there any .probable cause existing, any evi- 
dence then or thereafter produced against these gentlemen, 
; some twenty or more in number ? None Whatever. Some two 
•or three of them were afterwards examined and charges were 
brought against them of complicity in the murder ol Stephens, 
and they were bound over to court, and subsequently discharged 
for want of evidence against them. But I mean to say that 
against the great mass of them there was no charge and no 
evidence whatever, and the governor kraew it. He neverthe^ 
less orders his military satraps to go there and arrest frhese men 
without any cause or suspicion even, and without Warrant, 
Why, to say the least of it, that was a across abuse ol his office. 
These men were nut in arms, or offering any resistance what- 
ever to~the officers of the law. They could have been arrested 
by the civil authorities, any of them at any time — those 
against whom these charges, if any, had been then made, as 
well as those against whom there were no charges ; and that 
being the case there was no necessity or excuse whatever for 
resorting to the military arm. Xo officer has a right to do that 
until the civil authority is resisted. So I say that the respon- 
dent caused the arrest of these gentlemen when he knew that 
there was no evidence against them. Out of his own wicked 
heart and for wicked purposes, he had them seized and detained 
and imprisoned until he was forced to surrender them. 

But it is said that he is not responsible for these acts. 
Why ? '* Because other men have committed offences against 
the state." But these men had committed none, and from 
their characters and positions were not likely to have done 
so. There was not the slightest evidence that they had com- 
mitted any, or that they were even suspected. He does not 
bIiow that he had any information to that effect, but contrary 
to his duty, yes, his sworn duty, contrary to the laws of the 


tand., he seizes these men and imprisons them. What is more, 
he prepares to try them by a military court and to shoot or 
hang such of them as that court might convict. That was 
his determination, senators. I submit to you that there can 
be no question as to his guilt upon that charge. 

I come next to the two articles on the subject of habeas 
corpus. As to these it seems to me that upon the principle 
and the law heretofore discussed in this case, there can be no 
difficulty as to the decision that you are required to give» 
Soon alter these gentlemen were arrested, as well in the 
county of Alamance as in the county of Caswell, writs wen 
sued out before the chief justice of this state, alleging that 
they had been unlawfully seized and detained by this force, 
and asking for relief as they had a right to do under the laws 
of this state. Upon the first case that came before the chief 
justice — the case of Moore and others — there was a full and 
elaborate discussion by counsel on behalf of the petitioners 
as well as on the part of the respondent in this case. The 
counsel for the petitioners insisted that they were entitled to 
their discharge, and the counsel for the respondent insisted 
that they were not. Many of the questions which have been 
discussed here were then discussed before the chief justice. 
Finally, an opinion was delivered by him to the effect that the 
writ of habeas corpus was not suspended in North Carolina, 
and could not be. inasmuch as there was an express pro* 
vision in the constitution of the state that it should not 
be suspended; and he held further that while under the 
circumstances, he would not issue a mandate \o any 
officer to call out the posse comitatus for the purpose oi 
delivering these prisoners— (for Kirk had declared lhat 
he would not deliver them except when compelled to do 
so by superior force or by the orders oi his superior officer, the 
governor) — inasmuch as the governor was the commander-in- 
chief of the militia, the very force which would have to be 
called upon to enforce the execution of such mandate, yet, 
that he would issue an order to that effect and require tlia4 


that order, with a copy of his opinion, be served by the officer 
of the court upon the governor of the state himself. Well 
that was done. The governor took time to consider it. In 
the course of three or four days he made his response. "What 
was that response ? He declined to yield obedience to the 
order of the chief justice, pretending that he was justified 
by a portion of his opinion in doing what he did. But, sena- 
tors, examine that opinion. Take what appears on the face of 
it, and say whether it bears any such construction as that ? 
Inquire, if you will, why the governor undertook to override 
the law of the land and the great privilege of this writ, Who 
advised him to do it ? Under what counsel did he act.? Does 
it appear that he had any legal advice on the subject ? He 
chose to act upon his own understanding ol the law. He chose 
to contemn the decision ot the highest judicial officer in the 
state, to trample under foot his authority. Was it not his duty 
to yield to that authority ? Does not the chief justice say to 
him, substantially, in that opinion, '' I have accorded full faith 
" and credit to your acts, now I will expect you will do the same 
"thing to mine. The judiciary has a right to supervise the 
" action of other departments of the government, It rests 
" with me to decide whether your action is legal or illegal, 
" whether you have a right to detain these parties or not ; and 
" I hope yon will not take the responsibility of doing it, upon 
" any extreme notion that the safety of the state requires you 
" to do anything of the kind. 1 ' When the governor of the 
State had declined to yield obedience to that mandate, and when 
the motion was made in the first place to attach Kirk, his sub- 
ordinate officer, the chief justice declined to do it. Why? 
Because the governor had assumed the responsibility. Counsel 
then moved to attach the governor, but the chief justice de- 
clined to attach him, because the governor occupied the position 
of a co-ordinate branch of the government of which the judi- 
ciary was another ; lint said that the responsibility rested 
with the governor, that he, the chief justice, had no means of 
executing the writ— that he had exhausted the powers of the 


judiciary, and that thereafter, he repeated, the responsibility was 

with the governor of the state. Notwithstanding all this, the 
respondent persisted in his course. 

In that same opinion the chief justice held that the re- 
spondent had no right to try any citizen by any other mole 
than by bringing him before the civil courts of the country ; 
that he could not lawfully institute a military commission to 
try these parties. Did he listen to that? No, he set it all 
at defiance. He trampled upon the law of the land and upon 
the judiciary. He set himself up as above both. He declared 
that he would detain these citizens as long as he thought 
proper. Even after this opinion was delivered, declaring that 
he had no authority to institute a military commission to try 
them, he went on and was engaged in organizing such a com- 
mission, which was to meet a few days before the election, and 
which, for some reason, was afterward postponed. He stated 
in one of these private letters to Kirk, '' It will certainly meet 
"on the 8th of August," which was the week following the time 
he had originally set for the meeting. He then gave a partial 
list of the names of those who were to compose the court, and 
says, '• The residue of this court will be made up out of your 
" regiment." I have given a brief statement of the history of 
this matter of habeas corpus, so far as the case of Moore and 
others is concerned. 

A few days subsequent to that, a similar writ was sued out 
on behalf of John Kerr and a large number of others. The 
matter went through a similar train. The same conclusions 
were arrived at and the same result took place. Not one of 
them was surrendered. The respondent took the responsi- 
bility of holding them as he did Moore and others. Now 
what excuse can he have to offer? "Was he acting legally? 
"Why uobody will pretend that, unless the absurd position 
that martial law prevailed can be sustained. His own coun- 
cel, with one exception, have not claimed anything of the 
kind. The utmost contended for was that he had a right to 
make the arrests. One of them, it is true, said that in cases 


of insurrection the governor had a right, by virtue of his 
power, to suppress insurrection, to detain an insurrectionist 
after his arrest for a " reasonable time." But who is to judge 
of the " reasonableness " of the time ? Should the governor 
of the state assume this authority ? Is he to be the judge of 
that ? Is he, in other words, to hold such prisoners until! it 
suits his pleasure to surrender them, or does the law vest 
that power in another tribunal, to wit, the judiciary of the 
state \ Can there be any question about it % Can there be 
any question that this man now on trial before you knew that 
as well as any lawyer within the hearing of my voice, and 
especially after the chief justice had announced his decis- 
ions ? I do not think there can be any sort of«dispute about 
that ; and yet it is insisted by the accused in his answer that he 
had a right to detain these parties until he thought he might 
safely surrender them — in other words, to detain them at his 
will and his pleasure. And if he did detain them, as the evi- 
dence abundantly shows, as long as he was able to do it, can it 
be said that he acted honestly about this matter ? — that he 
acted from proper motives I — and how can they ask you to- ex- 
cuse him on that ground $ Why, as I have stated before to 
you, if a man violates the law he is presnmed to do it with a 
criminal intent until he shows to the contrary. But what evi- 
dence is there here that he acted from any proper motive ? 
Let us enquire and see how that is. 

In the first place, the respondent knew perfectly well that 
under the Shoffner bill the privilege of the writ of habeas 
corjAiH was not suspended. He knew that the original bill 
only authorized him to apply to the president, asking 
that the writ should be suspended by him or by congress. 
On the 14th of March, (the Shoffner bill having been 
passed on the 29th of January,) he sent a telegram to the 
members of congress from this state, to be laid before the 
congress of the United States, (which is an admission that 
he knew he had no such authority himself under the Shoffner 
act,) in. which he says, " I have declared the county of Ala- 


"mancetobe in a state of insurrection." What further did' 
he say ? Why, that he cannot effect what he wants to effect 
without a suspension of the writ of habeas corpus, that the 
president had been applied to, but lie was unable to do it under 
the constitution of the United States without the assent of 
congress, and he requests them to suspend the privilege of the 
writ. And for what purpose ? He says substantially, " We 
" want military commissions— civil tribunals won't answer, we 
" want a speedier and sharper remedy than is furnished by any 
" civil tribunal. We want military commissions to try and 
" shoot the offenders." "What ! a plea of ignorance set up 
for a man who says that ? From the beginning to the end, 
senators,, he shows this fell purpose, and he follows it up to 
the last. I 

What else have we? lie refused, as I have shown, to obey 
the mandate of the chief justice of the state. The- chief justice 
having declared himself powerless, an application is made to 
another judge — the district judge of the United States. He 
issues his writs.. What does, the respondent then, do.? Does 
he yield? ]So ! The writs having been issued on the 6th of 
August, on tlie 7th, the respondent telegraphs to the president 
of the United: States. And vdiat does he say in that telegram ? 
I want to call y<wir attention to it.. It is to be found on page 
213 of the- proceedings as reported,, and is sent from the execu- 
tive department at this place : 

v To the president of tJie United States : 

" Sir : The chief justice- of the supreme court of this state,, 
'* snstained by his associate justices, has decided that I have 
M a right to declare counties in a state of insurrection, and to, 
w arrest and; hold all suspected persons in such counties. 
y This I have done. 

'•'•But the district judge, Brooks, relying on the fourteenth 
" amendinent and the act of congress of 1867, page 385, chap- 
iter 28, has issued a writ of habeas, corpus, commanding the. 

2510 court or impeachments. 

" officer, Kirk, to produce before him the bodies of certain pris- 
" oners detained bv mv order. 

" I deny his right thus to interfere with the local laws in 
" murder cases. I hold these persons under our state laws, 
" and under the decision of our supreme court judges who have 
"jurisdiction of the whole matter, and it is not known to Judge 
" Brooks in what manner or by what tribunal the prisoners 
" will be examined and tried. 

" The officer will be directed to reply to the writ that he 
" holds the prisoners under my order, and that he refuses to 
" obey the writ. If the marshal shall then call upon the jx/sse 
" com'datus there may be conflict, but if he should call first on 
" the federal troops, it will be for you to say whether the troops 
" shall be used to take the prisoners out of my hands. 

" It is my purpose to detain the prisoners unless the army 
"of the United States under jour orders shall demand them." 
"Well, let us see how much truth and how much falsehood 
there is in this telegram in the first place. It is evidently an 
open defiance of the law. " I hold these prisoners," says he, 
" under our state laws, and under the decision of our supreme 
" court judges, who have jurisdiction of the whole matter." 
Was that true or was it false ? I say there was not a word of 
truth in it. Hold these persons under the decision of the 
judges of the supreme court? Had not the chief justice, and 
the other judges concurring, as he said, decided that he had no 
right to hold them ? And yet he telegraphs the president that 
the judges of the supreme court had decided that these persons 
for whom Judge Brooks had issued writs of habeas corpus, in- 
cluding Josiah Turner, jr., mind you, were held by virtue of a 
decision of the judges of the supreme court of North Carolina ! 
He says further, without charging that Judge Brooks intended 
to take jurisdiction of murder cases, when in fact a great 
many of these men had been arrested, as I have shown you, 
not only not on charges of murder, but upon no charge at all: 
" It is not known to Judge Brooks in what manner or by 
" what tribunal the prisoners will be examined and tried." 


Why put in that ? Because if tliev were to be tried by 
a military commission, it was very plain that under the act 
of congress, Judge Brooks would have the right to interpose. 
Therefore it is that he says to the president, '* Judge Brooks 
" does not know before what tribunal I am going to have these 
" persons examined and tried." 

He intended then to have them tried, as he had already de- 
clared, before this military commission of his, which was to meet 
on the 8th of August ; and it will be seen by an inspection of the 
testimony that about that time, or a few days afterwards, he 
issued an order to Kirk to bring all the prisoners over to Com- 
pany Shops with the witnesses. And why \ For the purpose 
of assembling this military court to try them. He then ex- 
pected no doubt that he would be sustained by the president. 
It was declared all along that he was backed up by the presi- 
dent. His myrmidons had declared, when making their 
arrests, that they made them by order of the president and of 
the governor of the state. He professed all along to ba acting 
in the name of and with the promised support of the presi- 
dent. Well, whether he was or was not, I don't know. I 
confess the circumstances are such that they do not show very 
favorably for the president of the United States. However, I 
do not wish to bring his name into this discussion. But cer- 
tainly the public were assured that the accused had his 
sanction and authority. Ha then appealed to the presi- 
dent in the manner I have stated here to sustain him. 
He further says : " The officer will be directed to reply to the 
" writ that he holds the prisoners under my order, and that he 
" refuses to obey the writ." Now what conies '. " If the 
"marshal shall then call on the p<me comitatus there may be 
" conflict, but if he should call first on the federal troops it will 
" be for you to say whether the troops shall be used to take 
" prisoners out of my hands. It is my purpose to detain the 
••'prisoners unless the army of the United States, under your 
" orders, shall demand them.*' That is, " I will resist, by force, 
"the marshal with his posse comitatus — lie will not get them. 


" I will use force against him. I will only yield when von 
" order the troops of the United States to take possession of 
" these men." Was there ever anything more defiant? ]STow, 
every lawyer knows that the marshal of the United. States 
has the same powers as to summoning a posxe to enforce a 
process of the United States as the sheriff" of a county has. 
And yet here is this man who is held up as a model of virtue 
and a model governor, who telegraphs to the president of the 
United States, and asks: u Do not send any of your troops 
k -- here to enforce the execution of process from a United States 
" court — do not take these men out of the hands of my officer 
" with United States soldiers — let the marshal go and summon 
" his posse and let him attempt to take them. I am strong 
" enough to resist him, and I will do it." And he declares 
his determination to do it unless the president interferes, and 
he begs the president not to do it. But that was carrying the 
thins a little too far. The president referred this communica- 
tion to his attorney general. His attorney general advised that 
it would not do, and a day or two alter, through the secretary 
of war, the governor got a communication advising him to 
yield to the action of Judge Brooks. 

Xot getting support from that quarter, what next does the 
respondent do? The law under which Judge Brooks was 
acting gave to the officer of the respondent ten days after ser- 
vice of the writs within which to make his returns. The limit 
allowed by law was taken advantage of by the respondent, lie 
refused to deliver these men or discharge them. In the meantime 
four of them were put in jail. One of them was ironed and 
the others were thrown into a loathsome dungeon without 
water or any other conveniences. 

But what did the respondent in the meantime? When he 
iumd that those of the prisoners whom he had refused to lib- 
orate or to bring before the chief justice upon his mandate, had, 
wim many others who had not sued out writs before him, to 
be carried before Judge Brooks, he took steps to procure the 
return of the chief justice from his home to this place for the 


purpose of resuming action upon these very cases, in which a 
tew clays before he had persistently refused obedience to his 
mandates. He addressed him a letter on the 15th of August, 
I believe, requesting his return. It appears from the evidence 
that the chief justice left here for his home a very short time 
before the election. 

The CHIEF JUSTICE. The day before. 

Mr. BRAGG. The day before the election, which was held 
on the 4th of August. After this correspondence had taken 
place between the president and the respondent, it appears that 
Mr. Call was sent to the chief justice to know whether he 
could attend here, the respondent having changed his mind in 
the meantime, as he pretends, as to his duty in relation to 
these prisoners. Mr. Ball went and returned, and then Mr. 
Neathery, the private secretary of the governor, was sent off 
that night. The letter was written to which I have referred, 
dated the 15th of August, and he was dispatched post haste to 
procure the attendance of the chief justice here, in order that 
Mr. Kerr and others who had, alter failure to get relief at the 
hands of the chief justice, applied for and obtained writs of 
haheas corjnis from Judge Brooks, should be brought before 
the chief justice here, and not carried before the federal judge 
at Salisbury. That letter is also a rather remarkable one ; and 
here again, senators, it seems to me that the respondent has 
not confined himself exactly to the truth. He says: 

"In my answer to the notices served upon me by the mar 
" shal of the supreme comt, in the matter of Adolphus G. 
" Moore and others, ex pa/rte, I stated to your honor that at 
" that time the public interest forbade me to permit Col. George 
" W. Kirk to bring before your honor the said parties; at the 
" same time I assured your honor that as soon as the safety of 
" the state should justify it, I would cheerfully restore the civil 
" power and cause the said parties to be brought before you, 
''together with the cause of their capture and detention." 

Now I say that in his answer he stated no such thing. lie 
did not say anywhere in that answer, addressed to the chief 


justice, when this notice of the chief justice's decision had been 
served upon him, that he would bring the parties before him. 
On the contrary, I have before shown you that it was his pur- 
pose not to bring them before him but, in defiance of the 
opinion of the chief justice, to try them by a military commis- 
sion as late as the 8th of August. 

" That time has arrived, and I have ordered Col. George W. 
" Kirk to obey the writs of habeas corpus issued by your 

Arrived ! What, so speedily ? Why, how was it that a few 
days before he could not do this thing ? The safety of the state 
then required that he should hold these men in custody and try 
them by military commission ; but somehow or other, in the 
meantime, the day had arrived when it would be safe for him 
to surrender these gentlemen in order that their cases might be 
disposed of by the civil authority. Well, there were several 
important matters that had occurred in the meantime. In the 
first place, the election had resulted differently from what was 
anticipated. In the next place, writs of habeas corpus had 
been issued by Judge Brooks, and that was another trouble. 
In the next place, he had telegraphed to the president and had 
found out that the president would not protect him in his viola- 
tion of law with the army of the United States, and hence, 
within the short period which had elapsed, this very great 
change was brought about in the condition of things in the 
state, and he could now abdicate his usurped imperial power 
and yield obedience to civil authority and law. The truth is, 
senators, that it was a forced obedience, for he knew the time 
had arrived when he could no longer hold these men. He 
made a virtue of necessity— it was not his choice. The chief 
justice came down on the 18th, and what did he say to the re- 
spondent ? 

" Receiving the return after the delay to which you allude 
" of several weeks, is not to be taken as concurring on my part 
" in the necessity for the delay, or as assuming any portion of 
'' the responsibility in regard to it." 


He had before pot the responsibility upon the governor, 
He was determined that it should rest there, and he told him 
so. Yet it is said here that upon these articles, the respondent 
had done nothing more than to arrest men whom he had a 
right to arrest ; that he detained them for a reasonable time 
only, and that when he thought that he could surrender them 
with safety to the public interest and the state, he did so. 

Senators, I think when you come to examine all the facts con- 
nected with that matter, some ot which only I have brought to 
your notice, you will see that that sort of defence is entitled to 
little or no consideration at your hands. 

Pending the argument of Mr. Bragg, the hour of ten o'clock, 
p. m., having arrived, on motion of Senator Graham, of Orange, 
the court adjourned to meet to-morrow at 11 o'clock. 



Senate Chamber, March 21, 1871. 

The COURT met at 11 o'clock, pursuant to adjournment, 
Honorable R. M. Pearson, Chief Justice of the Supreme Court, 
in the chair. 

Proceedings were opened by proclamation made in due form 
by the doorkeeper. 

The CLERK proceeded to call the roll of senators, when the 
following gentlemen were found to be present : 

Messrs. Adams, Albright, Allen, Barnett, Battle, Beasley, 
Bellamy, Brogden, Brown, Cook, Council, Cowles, Crowell, 
Currie, Edwards, Eppes, Flemining, Gilmer, Graham of Ala- 
mance, Graham of Orange, Hawkins, Hyman, Jones, King, 
Latham, Ledbetter, Lehman, Linney, Love, Mauney, McClam- 
my, McCotter, Merrimon, Moore, Morehead, Murphy, tor- 
ment, Olds, Price, Bobbins of Davidson, Robbins of Rowan, 
Skinner, Speed, Troy, Waddell, "Warren, Whiteside and 

Senator JONES moved that the reading of the journal be 
dispensed with. 

The CHIEF JUSTICE put the question on the motion of 
Senator Jones, and it was decided in the affirmative. 

Mr. BRAGG, in behalf of the managers, in resuming his 
argument, said : 

Mr. Chief Justice and Sexatoks : I am sensible that I 
have already occupied too much of the time of this body, it 
may be, unnecessarily, and I shall endeavor to be as brief in the 
remarks which I submit to-day as the nature of the case wil' 

I come now to the discussion ot the last two articles pre- 
ferred against the respondent, and it seems to me that in view 
of what I have said already, there can be little difficulty as 


to the judgment to which the senate shall come with regard to 
these articles. 

The seventh article charges, in substance, the unlawful 
raising and equipping of a large military force, composed in 
large part of lawless and desperate characters, that the respon^ 
<lent sent them to the counties of Alamance and Caswell under 
the command of Kirk, Burgen and Yates, as their chief officers, 
who were from the state of Tennessee, and who were desperate 
men, and that without warrant or lawful authority, they seized, 
held and imprisoned divers of the good people of said counties, 
some of whom, including Josiah Turner, Jr., of the county of 
Orange, were thrown into a loathsome dungeon, and that to 
sustain the same hand of armed and lawless men, the respon- 
dent made his warrant upon the state treasurer fur large sums 
of public money for the unlawful uses and purposes charged 

Now as to tlij first branch of this article, it is embraced sub- 
stantially in other articles, as to which I have already pre- 
sented my views very fully. The court is fully aware of all 
the evidence upon this subject. I need not go at length into 
the testimony by any minute comments upon it for the pur- 
pose of showing that the force was an unlawful one, or that 
it was of the character described in this article. But the prin- 
cipal point in that article, in addition to what is charged in 
other articles, is, as I conceive, the unlawful drawing of a war- 
rant upon the treasurer for large sums of money to be ap] 
priated for unlawful purposes. Now senators, if this force wai 
an unlawful one, then beyond any sort of question, the re- 
spondent had no right in law to draw his warrant upon 
public treasury for the purpose of sustaining and keeping it 
on foot. The constitution provides that no money shall be 
drawn from the public treasury unless it bo duly appropri 
by the legislative branch of the government, it has 1 
said that the act commonly known as the Shoffner act, au- 
thorized the governor to draw from the public treasury 
funds as were necessary for paying the militia, should t: 
be called out according to the provisions of that act. That is 


not denied. There is no question about that. But then the 
question comes back again, whether this force was a militia 
force ; whether it was such a force as was prescribed in that 
act. About that question, I suppose, there can be no sort of 
doubt. At all events, I have already presented my views 
upon that subject, and they can pass with the court for what 
they are worth. If senators shall conclude that this force was 
unlawful, then it necessarily follows that the governor, in 
drawing this money by means of his warrant, out of the treas- 
ury, violated the law, inasmuch as there was no appropriation 
of funds for any such unlawful purpose, and I have already 
undertaken to show you in wh; t I have said, not only that the 
force was unlawful, but that the respondent knew that it was 

Article YIII charges that to support the unlawful military 
force raised by him, he, by his warrant, caused large sums of 
the public money to be drawn from the public treasury in or- 
der to pay the officers and men composing it ; that he ap- 
pointed A. D. Jenkins, paymaster, to disburse the money for 
that purpose, and that an injunction was obtained from one of 
the judges ot the state to prevent its disbursement — that he 
sought to evade the force and effect of the injunction, and to 
that end removed Jenkins from his place of paymaster and 
appointed John ]>. feathery in his stead, and caused the 
money to be turned over to him to be disbursed, and it was 
disbursed accordingly, and that he thereby evaded the purposes 
of the writ of injunction. So it will be seen that the main 
point involved in that article is, whether he did the acts charged 
and did thus evade and disregard this injunction which, as chief 
executive officer of the state, it was his duty to respect, and, if 
necessary, cause to be enforced. The other matters have all 
been discussed. I submit, senators, that there can be no ques- 
tion upon that, when you to come to regard the evidence which 
has been offered upon that point. It seems that sometime in 
the month of July, the governor having given a military ap- 
pointment to Mr. Jenkins, which, by-the-bye, he had no right to 


give to him, assigned him to the duties of paymaster to tin's 
illegal force. But prior to that time, when this man Kirk 
arrived here from the state of Tennessee, the evidence shows 
that there was then paid over to him upon the governor's 
warrant on the state treasurer, for what purpose it does 
not exactly appear, the sum of one thousand dollars. What 
has become of that money, we do not know. Of course 
he applied it to such uses as he thought proper or perhaps 
to such as he may have been directed to apply it. Soon 
after that, some sixty thousand dollars or more were drawn 
out at one time from the public treasury, Why was that 
done? Why was the respondent in such haste to get that 
money out of the treasury and into other, irresponsible 
hands? For though it appears from some orders put in evi- 
dence here that these disbursing agents of his were to give 
bonds, it does not appear from the testimony that any bond or 
bonds were given for the faithful taking care and disbursing 
of that money. Indeed it appears from the testimony that no 
such bonds were given. Those were then i: flush" times, and 
everybody had plenty of money, except those who were hon- 
estly entitled to it. It could be drawn from the public treasury 
by the governor whenever lie thought proper to draw his 
warrant. How far the treasurer in such a case as that would 
be responsible, it is not for me now to say. This money Was 
drawn without lawful authority. It was placed in the hands 
of this young man as the agent or paymaster for unlawful 
purposes. But why was that large sum of money drawn out 
of the treasury at that time '. There was certainly no imme- 
diate use for it. Was it not in anticipation that there would 
be objection raised to his getting that money out of the treas- 
ury at all ? Why the whole country, at all events the state 
of North Carolina, was in a state of excitement. It was 
alleged, as we all know, as a part of the history of the day, that 
this body of troops raised by the respondent was unauthorized 
by law. It was commented upon in public and in private, 
before the chief justice in the habeas cor])v.8 cases, and the 


press of the state teemed with it. Senators, his purpose in 
drawing out that large sum of money was to prevent any inter- 
position, as he hoped, by any citizen, as was afterward done by 
a writ of injunction. After all this trouble about the writs of 
/tabeas corpus, after the election, after the surrender of these 
men who had been detained by him, under compulsion as I 
have stated, and not by his choice, an injunction at last having 
been obtained at the instance of a citizen of the state against 
the public treasurer and against this agent or paymaster, young 
Jenkins, to prevent the disbursement of that money, or the 
paying out of any more money from the treasury — after that 
injunction had been issued and served, and that fund which he 
intended unlawfully to disburse in the payment of this unlaw- 
ful force, was thereby tied up and stopped by the order of a 
court of justice, what then did the respondent do? Why he 
set about adopting some means — at whose suggestion it is not 
for me to say — to evade the operation of that injunction order. 
The evidence is, that he was fully aware of it, and he took 
means to evade it. This young man Jenkins dared not dis- 
burse the money himself. lie was advised that he could 
not -do it lawfully— that he would be guilty of con- 
tempt of court, and could be held amenable for it if he 
disregarded the injunction issued by his honor Judge Mitchell. 
What then were the means resorted to by the respondent to 
evade the injunction ? He issues a military order, relieving 
this voune man from the duty to which he had assigned him 
as a military officer and as paymaster, and appointed another, 
his private secretary, in his stead, and he then required young 
Jenkins to pay over the money to his successor. What are the 
circumstances connected with that transaction ? Time and 
again, after he had made this new appointment, which was sim- 
ultaneously made with the removal of young Jenkins, he 
applied to him to pay over this money to Mr. Iseathery. The 
young man was doubtful as to whether he omdit to do it. He 
was nrged by the respondent time and again to do it. lie 
whose duty it was, as chief executive officer of the state, to see 


that the laws were enforced and observed, was the man who 
covertly sought to evade and break the law, for we are to take 
it that that was the law, as his honor Judge Mitchell had 
issued the injunction, and until it was removed bv him or sonic 
other judge, the respondent was bound to take it that it was 
lawfully done. On Saturday he wanted to know of young 
Jenkins whether he would pay over this money. On Sunday 
morning, even, he approached him again and wanted to know 
whether he would do it. On Sunday afternoon he was sent 
for again to the executive office, and there lie found the gov- 
ernor's legal counsel in attendance with him. Young Jenkins 
was advised by one of them that he could safely turn over this 
money and not subject himself to the penalties of a contempt. 
It was remarked in his presence, by one of the gentlemen 
there — whether the governor or one of the others, he did not 
distinctly remember — that it was highly necessary to have the 
money paid over as the respondent had required, because there 
might be another injunction obtained to stop the money in the 
banks where it was deposited, and that it was necessary that it 
should be done at once to prevent that. Young Jenkins had 
been displaced. Finally, but reluctantly, he yielded to those ur- 
gent solicitations and to the commands of the respondent, and 
agreed to turn over the money. Xcathery was sent for at nine 
o'clock Sunday night. There was haste in getting this fund 
into his hands and to get it out of the bank. Jenkins wont to 
the bank and got the money that evening, by personal applica- 
tion to one of the officers. At the treasurer's office, at a late 
hour on Sunday night, they proceeded to count the money, <'-v^\ 
they got through counting and delivering it over to this new 

lointee of the respondent about 12 o'clock, and immediately 
thereafter the money was, by his orders, disbursed. Now can 
it be said that this was not a gross abuse on the part of the re- 
spondent of the duties of his office? 

What is the answer madefor him here \ "Whv that an iirjtmc- 
tion cannot run from the judiciary against tile governor of ' 
state. That is not what is involved here at all. We donot pre- 


tend that there was any inj unction against the governor, so that if 
he had violated it, he could have been put in contempt when 
brought before the judge. Not at all. It is unnecessary for 
me to discuss that point of law, but it is well settled in North 
Carolina that an injunction does properly run against the 
public treasurer, and by the same reasoning, a fortiori^ it would 
run against this agent or paymaster of the governor, to restrain 
the paying out and disbursing unlawfully of any of the public 
money. But that is not controverted. 

The gentlemen who represent the respondent, very well 
knew that they could not sustain any point of that hind— that 
is, that the injunction was not properly granted, and did not 
operate to all intents and purposes against the public treasurer, 
and against young Mr. Jenkins, who was the agent or paymas- 
ter to disburse this money. His advisers knew very well, as 
every lawyer knew, that if .young Jenkins disbursed that 
money when there was an injunction resting upon him, he 
would be put in contempt and subjected to all the pains and pen- 
laties of a contempt. But he was told, " The governor has 
" power to remove you — the governor has removed you and 
" ordered you to pay the money to your successor. That will 
" bo a sufficient answer when you are required to render an 
"account to the iud<re as to why you turned over this money. 
" That will excuse you from the pains and penalties of a con- 
" tempt ;" and the judge so held afterwards, and properly held ; 
for he did pay over this money virtually under compulsion, as 
1 have stated ; but whether on compulsion or not, he had 
ceased to be an officer in any sense ot the word; had ceased to 
have any authority for detaining that money, by the action of 
the respondent, and it was accordingly turned over into the 
hands of another and a more pliant agent. 

Senators, I wish to ask you now, in all seriousness, whether 
that does not amount to a high misdemeanor in office; whether 
on the part of the governor it was not an abuse of his office ; 
whether it was not an evasion ot the law — it being his duty not 
only to observe and respect the law. but to take care that it was 


enforced ? If the governor of the state will not respect the 
law, who is expected to obey and respect it ? So we say that 
upon that article there can be no sort of question as to what 
your judgment ought to be. 

Senators, there are a few other remarks, somewhat of a 
general character, that I wish to make before bringing to a 
close what I have to say. It is alleged that there were a great 
many crimes committed, especially in the county of Alamance, 
and some in the county of Caswell. Nay, the respondent goes 
so far as to say in a part oi his answer, that a majority of the 
white voters in these two counties belonged to this secret organ- 
ization which was set on foot for the unlawful purposes which 
he alleges ? Now we have evidence here as to the extent of 
these organizations in the county of Alamance from reliable 
sources, showing that the whole of their members never ex- 
ceeded at any time two hundred. The purposes tor which 
those secret organizations were set on foot have been stated by 
various witnesses. I have nothing to say about that now, 
except this : that the whole history of things in those coun- 
ties — and I might say elsewhere — goes to show that all secret 
political organizations are in themselves dangerous, and ought, 
if possible, to be put an end to. I condemn, as fully as any 
man can condemn, the various acts which are complained ot as 
committed there or elsewhere, whether they have been done 
by one secret organization or another. I am no apologist for 
any such thing, for while I may be considered as a party man, 
I beg to say, and I think every intelligent man within the 
sound of my voice will agree with me, that any and all such 
acts on the part of these organizations have redounded, not to 
the benefit, as has been alleged, of the political party to which 
I and many of you belong, but have been in the main of very 
great injury to that party. But I have said that this state of 
things in a great degree arose out of the state of the times. 
As fur the county of Caswell, allow me to say that there is not 
a particle of evidence here to show that there was any organi- 
zation of that kind within its limits. Some offences were 


proved to Lave been committed there, but comparatively few 
in number. Out of a population of some sixteen thousand or 
upwards, two homicides are alleged to have been committed in 
secret, one of them proved to have been done by disguised 
men, and the other committed by whom we know not. But 
let us take the whole number of effences that have been 
brought up here, chiefly from Alamance county, many of them 
very trivial in their character, but magnified to the greatest 
possible extent on the other side, and what do they show ? It 
is evident that every offence, however trivial, where the per- 
sonal rights of another had been invaded by any of these dis 
guiscd persons, within the space of two years prior to July 
1870, has been hunted up with the utmost industry and pre- 
sented here with the highly colored comments of the gentlemen 
on the other side. Some of these offences look to be serious 
in character, and are serious no doubt, but not to the extent 
that has been represented either here or elsewhere. And' 
again, I may remark somewhat in palliation, though not in 
justification, that these organizations, which were gotten 
up at first for the purposes, as alleged by some who belonged 
to them, of inflicting some kind of punishment upon men 
who had been guilty of wrong doing, when the laws of the 
counti'y were not enforced against them were virtually dis- 
solved, according to the evidence, some year or more before 
many of these offences were committed, and that in point 
of fact nearly the Avhole of those outrages were committed 
by small bands of irresponsible men who had belonged 
to these organizations, and for which the great mass of 
those who had belonged to them were not at all responsible. 
But, however that may be, still it was all wrong — there is no 
doubt about that. But on the other hand, other offences of a 
different character were also committed, the perpetrators of 
which were alleged to go unpunished. This whole state of 
things has resulted, in my humble opinion, from the evil coun- 
sels of certain men, who ought to have given other advice, and 
from the inefficient administration of the public justice of the 


state. Retaliations were spoken of, as if other acts of lawless- 
ness were committed solely in retaliation ot the outrages which 
have been charged to the Kuklux. And one of the learned 
counsel asks : " Why didn't you prove these other acts }" 
Why, it is sufficient for me to say, as senators know, that those 
acts, whatever they may have been, were not directly in issue 
here. It was proper and competent on the part of the respon- 
dent, as a part of his case, to prove all these alleged outrages 
on personal rights in those two counties, but it was incompetent 
and not proper for the managers to attempt to prove or prove 
separate and distinct crimes of a different character, and for and 
on account of which many ot these personal outrages were 
committed. We have heard of barn-burnings, of thefts, in- 
sults to women, and of other offences of a heinous character, 
but they were not to be brought in issue here directly. It was 
only incidentally that these things could come up when a wit- 
ness was put upon the stand and examined. In many cases 
they have admitted what they were punished for, and several 
had the candor to confess that they deserved what they got. 

But I said that this bad state of things was measurably 
produced by inefficient action on the part of judicial and prose- 
cuting officers. Let me call your attention, senators, to a piece 
of evidence that was introduced here towards the close of the 
trial — I mean the record of the criminal docket of tw T o terms 
of the superior court of Caswell county. What does it show ? 
A large number of cases of larceny and other crimes, and 
perhaps nine out of ten of them were settled by the judge, or 
perhaps I should say more properly, the solicitor, for that 
district, allowing parties to pay the costs of the prosecution 
and having judgment suspended, instead of their being sub- 
jected to punishment. The solicitor received bis fees, but 
offenders went unwhipped of justice. You have seen the 
solicitor here as a witness. You have had an opportunity of 
seeing what manner of man he is, of forming an opinion as 
to his capacity, and as to how, in some reaped s, he performed 
his public duties. 


Now it lias been urged here by way of excuse rather than 
justification for the respondent, that there was no way of put- 
ting a stop to these offences. There was no means that the 
civil authority could adopt of breaking up these organizations 
and ferreting out and punishing these secret violations of the law. 
Suppose you had had an efficient judge and an efficient pros- 
ecuting officer in that district, such as those we used to have in 
North Carolina in former times, and such as we ought to have 
now, are you not satisfied that things would have resulted dif- 
ferently ? Moreover, it was in the power of the governor to ap- 
point courts of oyer and terminer there, and if the resident 
judge could not or would not enforce the law ; or had not capa- 
city to do it, he could have sent another judge there who would 
have done it ; and if the state's counsel there was not compe- 
tent to ferret out and cause to be brought to justice these offen- 
ders, it was in the power of the governor, under the law, to 
employ other counsel to do it. I appeal to every lawyer who 
hears me, I care not on which side of the senate he may sit, 
whether if that had been done, or if there had been a vigilant 
and efficient prosecuting officer there, and he had gone before 
the grand juries, as he would have a right to do, and set to 
work himself, and examined the witnesses, sending off, it neces- 
sary, for man after man and witness after witness, and causing 
a thorough and searching investigation into all these cases, 
this secret commission of crime would not have been broken 
up and the offenders brought to speedy and condign punish- 
ment? The difficulty was in the machinery of the law and in 
the want of its proper administration, for the evidence shows, 
despite of all that lias been said to the contrary, that the grand 
juries were disposed to do their duty. The law was powerful 
enough to reach offenders. But to this day has the executive 
ever resorted to any such means? No, he resorted to a differ- 
ent mode. He preferred to resort to the military arm. He 
preferred to send troops there of his own, and to cause other 
troops to be sent there by the government of the United States 
by which this pretended insurrection was to be suppressed, and 


these crimes prevented. He preferred himself to become the 
executor ot his own will, in his own way, and by the military 
arm, and to arrest, detain and imprison without regard to law, 
many men who were as innocent of crime as any of you, and 
•then to organize and set on foot a military court to try them. 

Senators, strong appeals have heen made to you, and you 
have been warned not to listen to the promptings ot political 
feeling. I again repeat that this is not a political trial. I 
.again say that upon this trial depends, in a great degree, the 
preservation of the great principles ot civil and constitutional 
liberty and law. And here I would say to those who belong 
to the political party in the minority here, that the same state 
of things might occur, (but I trust in God it never will occur, 
if these great principles are maintained and respected) when 
another political organization, that to which the majority of 
this body now belongs, shall get full control of every depart- 
ment of the government. It may be, let me now say to them, 
in justification of this prosecution, that when that party comes 
into power, if the present executive should be held to be guilt- 
less and is excused, because it had been common to violate 
these fundamental principles of civil liberty and safeguards tor 
the citizen, that another executive office — differing in political 
sentiment from the one now on trial, may undertake to exercise 
similar powers against his political opponents and commit like 
abuses. I do not believe that there will be any such attempt ; 
but if there ever should be, let the author or asserter of them 
come from whatever political party he may, I for one will set a 
face of flint against him, as I have done against all such acts on 
the part of the respondent. I have lived too long not to value 
the principles of civil liberty, I have lived too long, and I trust 
have been too well educated in them, not to respect at all times 
and under all circumstances, those principles contained in our 
constitution and bill of rights, without which the mere forms 
of free government are a sham and a cheat. 

But, senators, the case ot the impeachment of President 
Johnson has been repeatedly brought to you* notice. You. 



have been told again and again that that was a mere political 
prosecution ; that he was put upon his trial and sought tobe 
disgraced and turned out of his office merely on political 
grounds, and the learned counsel [Mr. Conigland] who sits 
before me, and who made such an eloquent appeal to you on 
behalf of the respondent, used this language : 

""What man, Mr. Chief Justice and Senators, was ever 
" assailed with more ferocity than Andrew Johnson \ During 
" the pendency of his trial the most disreputable means were 
u resorted to in order to secure his conviction. Those who 
" put trust in the calumny and vituperation poured upon him 
" must have regarded him as unredeemed by a single virtue, 
" vet he was innocent of all the crimes laid to his charge. This 
" of itself should satisfy us that public clamor and cries for 
" vengeance are not always evidence of guilt." 

In another part of what follows, lie undertakes to draw a 
parallel between President Johnson and Governor Holden, not 
only as men but as public officers, and he theu says: 

" President Johnson's only crime was the interposition of his 
"authority to save the prostrate bleeding south from utter 
s ' destruction." 

Well, I shall not undertake to deny the most of what my 
friend said as to President Johnson. I think history, hereafter 
when it comes to be written in calmer times than those in 
which we live, will pronounce the same judgment that he has 
upon the merits of that case, but nevertheless I think the coun- 
sel was unfortunate in drawing the parallel which he under- 
took to draw between Mr. Johnson and the respondent. The 
charges against them are in no wise similar. Those against 
Mr. Johnson were in the main that he had attempted to vio- 
late the act commonly called the tenure of office act by re- 
moving Mr. Stanton, one of his cabinet officers, from office, 
which was a matter comparatively trivial. Such are not the 
charges brought against the respondent. And there was 
another fact my friend tailed to recollect, that while Andrew 
Johnson was impeached for the reasons and under the influ- 


ences assigned by liirn here, his client, who had been appointed 
by this same Andrew Johnson provisional governor of North 
Carolina, a position of almost imperial power, as another of 
the counsel has told us, was one of the men who, when this 
same President Johnson was sought to be immolated by his po- 
litical foes for political reasons only, united in the attempt, and 
over his own hand in the public press of the country insisted 
that he should be impeached, degraded and driven from office. 
There is the parallel. Yes, this man whom he had thus taken 
up and placed in this prominent position, placed there against 
the remonstrances of many of his political friends, when the 
struggle came and he saw that Mr. Johnson was on the losing 
side, joined in the cry, crucify him ! crucify him! and sought 
his political blood. Now I remember no such act in Mr. 
Johnson's life as that. Whatever else may be said of him, 
I feel sure that no act of his life can be found to furnish a par- 
allel to the ungrateful act of the respondent towards him. 

Now I know the warm, impulsive and generous nature of 
my friend who sits before me. No man is more his friend 
than I am. None can say that I mean to censure anything 
that he has thought proper to say here, or what any others of 
the counsel have thought proper to say on behalf of the re- 
spondent. I fully appreciate their situation, and his situation 
especially, and I say now and here that it w r as their duty, as 
members of our profession, to have appeared for him and to 
have rendered him all the service that they could fairly render 
in his defence. I know that if they have perhaps occasionally 
exceeded the bounds somewhat of the duty of counsel under 
the circumstances, and in some particulars, it is attributable 
to an honest zeal for their client, and in so far is to be com 
mended. Judging from m3'self, and knowing that when the 
feelings of counsel become enlisted in the defence of a client 
they often go further in some respects than sober judgment 
and reason in calmer moments would perhaps prompt, J trust 
I shall be always ready to commend rather than to censure. 

But, senators, the example of one or two prominent men 


■who sat upon the trial of President Johnson lias been brought 
to jour notice as worthy of your imitation, especially the course 
and action of Senator Fessenden, now no more. ~No one 
approves more highly of the course of that distinguished sena- 
tor than I do. I knew him personal]}^ for I had the honor 
to serve for a time in the senate with him. It will be a monu- 
ment to his memory, I believe, herealter, that amidst all the 
clamor and all the excitement, indoors and out of doors, during 
that great trial, he listened only to the promptings of his judg- 
ment and of his conscience, and voted to acquit. But as I 
have said to you already, the charges preferred against the 
president and the circumstances attending his trial were very 
different from those to be found in this case. Understanding 
that it was the purpose of counsel, in referring to the course of 
Mr. Fessenden, and perhaps some other senator who voted for 
acquittal in that trial, to impress it upon this court that they 
did so merely on the grounds of the motives of the president, 
while in fact and in truth he had violated the tenure of office 
act in the attempted removal of Mr. Stanton, I took occasion 
to read what I had not read before, the reasons given, by Sena- 
tor Fessenden for coming to the conclusion that he did. I 
have that opinion here in the third volume of that celebrated 
trial. I have made an abstract in writing of the reasons given 
by him for his vote upon that occasion. They were briefly 
these, — and I hope senators will pardon me for reading them, 
though perhaps nut strictly pertinent to the issue now before 
you. Senator Fessenden held — 

1. That by the uniform practice of the government from the 
time of its inauguration, and the provisions of sundry acts of 
congress recognizing it as the proper construction of the con- 
stitution, the president had exercised the power of removing 
from office public officers, including those holding cabinet ap- 
pointments. Without undertaking to decide whether this was 
the proper construction of the constitution he held, 

2. That Mr. Stanton, having been originally appointed sec- 
retary of war by Mr. Lincoln during his first term, and remain- 


ing in office without re-appointment after the commencement 
of his second term until his death, and so after president John- 
son came into the presidential office, continuing in the office of 
secretary of war without any appointment from him, held the 
office of secretary of war at the pleasure of the president, and 
his case did not come within the provisions of the tenure of 
office act of March 2nd, 1867, and that the president was guilty 
of no misdemeanor in attempting to remove him, and that lie 
had a legal right to remove him. 

3^ That he had a right to designate Gen. Thomas as secre- 
tary of war ad interim. These opinions disposed of all the 
articles up to the 10th, and that related to certain denunciations 
made of the then congress of the United States, or rather mem- 
bers thereof, in public speeches made by Mi*. Johnson and 
reported and published in the public press. 

•4. These senator Fessenden considered to have been in bad 
taste, but not as constituting any crime or impeachable offence. 

5. That the evidence failed to show that he was guilty of the 
11th article, which charged an attempt to prevent the execu- 
tion of the act of March 2nd, 1867, nor did it establish the 
truth of any of the specifications under that charge. 

Xow, you see the ground upon which Senator Fessenden 
acted. After a full discussion of the law as applicable to the 
questions involved, — and he was a distinguished lawyer, — he 
came to the conclusion, a rightful one as I believe, and one that 
will be justified by history hereafter, when the excitement 
which gave rise to those charges shall have passed away, that 
according to the law and the evidence the president had done 
nothing which constituted an impeachable offence, and there- 
fore he voted to acquit him. What sort of a parallel is there 
between that case and this ? 

Senators, I have now, in a feeble way it is true, presented to 
you the views which, in the main, I desired to present upon 
this important trial. 1 have endeavored to discharge my duty 
here as one of the counsel for the managers, fearlessly but fairly. 
I hope I have said nothing here to give offense to any one. If 


in the heat of discussion here remarks may occasionally have 
fallen from me tending to wound the feelings of any person 
whatever, all I can say is that I regret that such words were 

And 'now, senators, without further remark I commit this 
case to } T ou. On you rests the responsibility of rendering a 
righteous judgement here. I know what that responsibility 
is. I know the solemn oaths that you and each of you have 
taken, and it is not for me to say what that judgement ought 
to be. I have my own views of it, and I have presented them 
fully to the best of my ability, but with you rests the responsi- 
bility. If, upon consideration, you conclude that the respondent 
is guilty of all or any of the articles ol impeachment preferred 
against him, then I am perfectly satisfied, I am certain, that 
you will not hesitate, for any reason, to render that judgment. 
If, on the contrary, the prosecution has failed to make good any 
or all of the charges which have been made, then I am equally 
certain that it will be your pleasure, as I am that it will be your 
duty, to acquit him. 

Senator FLEMMING offered the following order : 

Ordered, That the senate, sitting as a court of impeachment, 
proceed to vote on the articles as presented by the house of 
representatives against W. W. Ilolden, Governor of North Car- 
olina, on Wednesday 22nd inst., at eleven o'clock, and that a 
message be sent to the house of representatives informing that 
body of the day and hour designated. 

Senator McCLAMMY called the ayes and noes. 

A sufficient number of senators seconding the call, the ayes 
and noes were ordered. 

The CLERK proceeded to call the roll on the adoption of 
the order of Senator Fleniming, and it was decided in the affirm- 
ative by the following vote : 

Those who voted in the affirmative are: 

Messrs. Adams, Albright, Allen, Baruett, Battle, Beasley, 


Brogden, Brown, Cook, Council, Cowles, Crowell, Currie, Ed- 
wards, Flemming, Gilmer, Graham of Alamance, Graham of 
Orange, Hawkins, Hyman, Jones, King, Latham, Ledbetter, 
Lehman, Linney, Love, Mauney, McClammy, McCotter, Merri- 
raon, Moore, Murphy, Norment, Price, Bobbins of Davidson, 
Bobbins of Bowan, Skinner, Speed, Troy, Waddell, Warren, 
"Whiteside and Worth — 44. 

Senator JONES offered the following order ; 

Ordered, That the time for filing written opinions in this 
case be extended to one week from the final decision. 

Senator JONES. Mr. Chief Justice, some of the senators 
who intend to prepare and file opinions, think it would be 
hardly proper to commence the labor of preparation until 
after the arguments were finally closed. I think a week is as 
little time as will suffice, in view of our legislative duties, to 
enable senators to prepare opinions to their satisfaction. I 
hope there will be no objection to the order. 

Senator EDWABDS. I would enquire, Mr. Chief Justice, 
whether the effect of adopting this order will be to keep the 
court open for another week ? 

Senator JONES. I think not. I cannot see why it need 
delay the final adjournment. The opinions will be prepared 
and filed with the clerk and incorporated in the printed 

Senator LOVE called for the ayes and noes. 

A sufficient number seconding the call, the ayes and noes 
were ordered. 

The CLERK proceeded to call the roll on the adoption of 
the order of Senator Jones, and it was decidedin the affirmative 
by the following vote : 

Those who voted in the affirmative are : 

Messrs. Allen, Currie, Edwards, Flemming, Gilmer, Gra- 
ham of Alamance, Graham of Orange, Hawkins, Jones, 
Latham., Linney, McClammy, Merrimon, Moore, Murphy, 


Price, Bobbins of Davidson, Bobbins of Bowan, Skinner,. 
Speed, Troy, Warren and Worth — 23. 

Those who voted in the negative are : 

Messrs. Adams, Albright, Bamett, Battle, Beasley, Bellamy,. 
Brogden, Cook, Council, Cowlea, Crowell, Hyman, King, 
Ledbetter, Love, Mauney, Mc Cotter, Norment, Waddell and 
Whiteside— 20. 

Senator BOBBINS, of Rowan, offered the following order : 

Ordered, That the final vote in the articles of impeachment 
be taken without debate or explanation. 

Senator COWLES called for the ayes and noes. 

Senator GILMER. It strikes me, Mr. Chief Justice, that 
the order proposed is not necessary. Rule XIX reads thus : 

" In taking the votes of the senate upon the articles of im- 
"peachment, the clerk will read the several articles suc- 
u cessively, and after the reading of each article, the clerk 
" will call the name of each senator, who shall rise in his place, 
"and thereupon the presiding officer shall put the following 

" question : ' Mr. how say you, is the respondent, 

"' William W. Holden, guilty or not guilty as charged in 
< t the article of impeachment T Whereupon each sena- 
tor shall answer 1 guilty' or ' not guilty.' " 

It seems to me, sir, that these can be no debate under the 

Senator BOBBINS, of Bowan. I am aware Mr. Chief 
Justice, that under that rule it would seem that there could 
not be debate. But there is another rule which says there may 
be debate prior to the vote. The object of the order which I 
have offered is to have the matter definitely settled, that we 
shall proceed to a vote without debate. 

A sufficient number seconding the call for the ayes and noes, 
they were ordered. 

The CLERK proceeded to call the roll of senators on tkc 


adoption of the order of Senator Bobbins, of Rowan, and it 
was decided in the affirmative by the following vote : 

Those who voted in the affirmative are : 

Messrs. Adams, Albright, Allen, Barnett, Battle, Beasley, 
Brogden, Brown, Council, Crowell, Currie, Edwards, Eppes, 
Gilmer, Graham of Alamance, Graham of Orange, Hawkins, 
Jones, King, Latham, Ledbetter, Lehman, Linney, Love, Maun- 
ney, M^Clammy, McCotter, Merrimon, Moore, Murphy, Xor- 
ment, Price, Bobbins of Davidson, Bobbins of Bowan, Skinner, 
Speed, Troy, Waddell, Warren, Whiteside and Worth — -il. 

Those who voted in the negative are : 

Messrs. Bellamy, Cook, Cowles, Flemming and Hyman — 5. 

On motion of Senator Linney, the court adjourned to meet 
at 11 o'clock, a. in., to-morrow. 



Senate Chamber, March 22, 1871. 

The COURT met at eleven o'clock, a. m., pursuant to ad- 
journment, Hon. R. M. Pearson, Chief Justice of the supreme 
Court, in the chair. 

Proceedings were opened by proclamation made in due form 
by the doorkeeper. 

The CLERK, William L. Saunders, Esq., proceeded to call 
the roll of senators, when the following gentlemen were found 
to be present : 

Messrs. Adams, Albright, Allen, Barnett, Battle, Beasley, 
Bellamy, Brogden, Brown, Cook, Council, Cowles, Crowell, 
Currie, Dargan, Edwards, Eppes, Elemming, Gilmer, Graham 
of Alamance, Graham of Orange, Hawkins, Hyman, Jones, 
King, Latham, Ledbetter, Lehman, Linney, Love. Mauney, 
McClammy, McCotter, Merrimon, Moore, Morehead, Murphy, 
Norment, Olds, Price, Robbins of Davidson, Robbins of 
Rowan, Skinner, Speed, Troy, Waddell, Warren, Whiteside 
and Worth— 49. 

The DOORKEEPER announced the presence of the board 
of managers with their counsel, and the house of representa- 
tives, who proceeded to take seats within the chamber of the 

The CHIEF JUSTICE. The court is now ready to 
proceed to the final vote on the articles of impeachment pre- 
sented against William W. H olden, Governor of the State of 
North Carolina. The doorkeeper is directed to see that 
order and silence is preserved in the gallery. '-■'•\" 

Senator JONES. Mr. Chief Justice, I give notice that if 
there be any demonstration of approval or disapproval in the 
galleries or lobbies, I shall move to have them cleared, except 
of the members of house of representatives, 


The CHIEF JUSTICE. The clerk will read the first 

Mr. Henry A. London, Jr., ASSISTANT CLERK, pro- 
ceeded to read the first article in the words following : 

Article I. 

That by the constitution of the state of North Carolina, the 
governor of said state has power to call out the militia thereof 
to execute the laws, suppress riots or insurrection, and to repel 
invasion, whenever the execution of the law shall be resisted, 
or there shall exist any riot, insurrection or invasion, but not 
otherwise ; that William W. Holden, governor of said state, 
unmindful of the high duties of his office, the obligation of his 
solemn oath of office, and the constitution and laws of said 
state, and intending to stir up civil war, and subvert personal 
and public liberty, and the constitution and laws of said state, 
and of the United States, and contriving and intending to hu- 
miliate and degrade the said state and the people thereof, and 
especially the people of the county of Alamance, and to pro- 
voke the people to wrath and violence, did, under color of his 
said office, on the seventh day of March, in the year of our Lord 
one thousand eight hundred and seventy, in said state, of his 
own false, corrupt and wicked mind and purpose, proclaim and 
declare that the county of Alamance in said state, was in insur- 
rection, and did, after the days and time last aforesaid, send bodies 
of armed desperate and lawless men, organized and set on foot 
without authority of law, into said county, and occupy the same 
by military force, and suspend civil authority, and the constitution 
and laws of the state ; and did, after the days and times last 
aforesaid, and before the time of impeachment, in this behalf, 
through and by means of such armed, desperate and lawless 
men, arrest many peaceable and law-abiding citizens of said 
county of Alamance, then and there about their lawful busi- 
ness ; and did detain, hold, imprison, hang, beat, and otherwise 
maltreat and injure many of them, to wit: Lucien II. Murray, 


George S. Rogers, William Bingham, Alexander "Wilson, 
Walter Thornton, William Redding, Thomas M. Holt, George 
Andrews, John Andrews, Frederick Blanchard, Adolphus G. 
Moore, John Roherson, James jST. Holt, William Tate, Alex- 
ander Patterson, Jesse Gant, Lemuel Whitsett, Josiah Thomp- 
son, Sidney Steele, George Johnson, William Patton, Joseph 
Wright, Benjamin McAdams, Rnffin Andrews, Thomas Ray, 
Joseph Pritchard, Loften Tear, Joseph Thompson, Henry 
Cooke, William Andrews, M. N. Shaw, John Long, James H. 
Anderson, Joseph Gibson, Henry Pritchard, Joseph Kelson, 
James R. Murphy, Jr., William Kirkpatrick, Thomas Gray, 
Jefferson Younger, Frank Mebane, Clement Curtis, John W. 
McAdams, William Moore, William Clendenen, D. W. Weedon, 
David Moses, P. Thompson, David Moore, Monroe Fowler, 
Henry C. Hurdle, William Whitsett, Albert Murray, J. G. 
Moore, Joseph Kirkpatrick, W. Y. Montgomery, John Trol- 
linger, Jerry Whitsett, Calvin Gibson, John G. Albright, 
Robert Hannah, William Johnson, Henderson Scott, Wil- 
liam Stockard, James Dickson, R. A. Albright, Thomas Lut- 
terloh, John Grant, James Foust, John Curtis, A. Thompson, 
Robert Stockard, J. A. Moore, James T. Hunter, James S. 
Scott, John Smith, George Andrews, Milton Pickard, Henry 
Robertson, John R. Stockard, John Curtis, and Joseph Stock- 
ard, when in fact and truth there was no such or any insurrec- 
tion in said county of Alamance. And he, the said William 
W. Holden, governor as aforesaid, well knew that such and 
said proclamation was groundless and talse, and that there was 
no insurrection in said county, and that all civil authorities, both 
state and county, in said county, were peacefully and regularly 
in the lull, tree and unrestrained exercise in all respects, of the 
functions of their offices, and the courts were all open, and the 
due administration of the law was unimpeded by any resistance 
whatsoever, whereby the said William W. Holden, governor 
as aforesaid, did then and there, and in the way and manner, 
and by the means aforesaid, commit and was guilty of a high 


crime in office against the constitution and laws of said state, 
and the peace, interests and dignity thereof. 

The CLERK, Mr. Saunders, proceeded to call the roll of 
senators, whereupon each senator arose in his place as his name 
was called, and the chief justice asked, " How say you, is Wil- 
"liam W. Holden guilty or not guilty, as charged in this article 
" of impeachment ?" 

The calling of the roll having been concluded, the clerk 
announced the vote as follows : 

Guilty — Messrs. Adams, Albright, iUlen, Battle, Brown, 
Council, Crowell, Curne, Dargan, Edwards, Graham of Ala- 
mance, Graham of Orange, Jones, Latham, Ledbetter, Linney, 
Love, Mauney, McOammy, Merrimon, Morehead, Murphy, 
Eobbins of Davidson, Eobbins of Rowan, Skinner, Troy, Wad- 
dell, Warren, Whiteside and Worth— 30. 

Not Guilty— Messrs. Barnett, Beasley, Bellamy, Brogden, 
Cook, Cowles, Eppes, Flemming, Gilmer, Hawkins, Ilyman, 
King, Lehman, McCotter, Moore, Norment, Olds. Price and 
Speed — 19. 

Whole number 40 ; two-thirds 33. 

The CHIEF JUSTICE. The clerk reports thirty senators 
as voting guilty, and nineteen senators as voting not guilty on 
article I. So William W. Holden is acquitted on that article of 
impeachment The clerk will read the second article. 

The ASSISTANT CLERK, Mr. London, proceeded to read 
the second article in the words following 1 : 

Article II. 

That by the constitution of the state of North Carolina, the 
governor of said state has power to call out the militia thereof 
to execute the law, suppress riots or insurrection, whenever 
the execution of the law shall be resisted, or there shall exist 
any riot, insurrection or invasion, but not otherwise. That 
William W. Holden, governor of said state, unmindful of the 
high duties of his office, the obligations of his solemn oath of 


office and the constitution and laws of said state, and intending 
to stir up civil war, and subvert personal and public liberty, 
and the constitution and laws of said state and of the United 
States, contriving and intending to humiliate and degrade the 
said state and the people thereof, and especially the people of 
the county of Caswell in said state, and to provoke the people to 
wrath and violence, did, under the color of his said office, on the 
eighth day of July, in the year of our Lord one thousand eight 
hundred and seventy, in said state, of his own false, corrupt and 
wicked mind and purpose, proclaim and declare the county of 
Caswell, in said state, in insurrection, and did, after the days 
and times last aforesaid, send bodies of armed, desperate and 
lawless men, organized and set on foot without authority of law, 
into the said county, and occupy the same by military force and 
suspend the civil authority and the constitution and laws of the 
state, and did, after the days and times last aforesaid, and before 
the time of impeachment in this behalf, through and by means 
of such armed, desperate and lawless mem, arrest many peace- 
able and law-abiding citizens of the said county of Caswell, 
then and there about their lawful business, and did detain, hold, 
imprison, and otherwise maltreat and injure many of them, to- 
wit: John Kerr, Samuel P. Hill, Wm B. Bowe, Nathaniel M. 
Roane, Frank A. Wiley, Jesse C. Griffith, J. T. Mitchell, 
Thomas J. Womack, A. G. Yancey, John McKee, A. A. 
Mitchell, Yancey Jones, J. M. Neal, Berzillai Graves, Robert 
Roane, James R. Fowler, M. C. Hooper, James C. Williamson, 
and Peter II. Williamson, when, in fact and truth, there was 
no such or any insurrection in said county of Caswell, and he, 
the said William W. II olden, governor as aforesaid, well knew 
that such and said proclamation was utterly groundless and 
false, and that there was no insurrection in said county of Cas- 
well, and that all the civil authorities, both state and county, in 
eaid county, were peacefully and regularly in the full, free and 
unrestrained exercise in all respects of the functions of their 
offices, and the courts were all open and the due administration 
of the law was unimpeded by any resistance whatsoever, 


whereby the said William W. Ilolden, governor as aforesaid, 
did then and there, and in the way and manner and by the 
means aforesaid, commit and was guilty of a high crime in 
office against the constitution and laws of said state, and the 
peace, interests and dignity thereof. 

The CLERK, Mr. Saunders, proceeded to call the roll ot sen- 
ators, whereupon each senator, as his name was called, arose in 
his place, and the chief justice asked: " How say you, is 
" William W. Ilolden guilty or not guilty, as charged in this 
" article of impeachment ?" 

The calling of the roll having been concluded, the clerk an- 
nounced the vote as follows : 

Guilty — Messrs. Adams, Albright, Allen, Battle, Brown, 
Council, Crowell, Carrie, Dargan, Edwards, Gilmer, Graham 
of Alamance, Graham of Orange, Jones, Latham, Ledbetter, 
Lehman, Linney, Love, Mauney, McClammy, Merrimon, 
More-head, Murphy, Robbins ol Davidson, Bobbins of Rowan, 
Skinner, Speed, Troy, Waddell, Warren, Whiteside and Worth 

Not Guilty — Messrs. Barnett, Beasley, Bellamy, Brogden, 
Cook, Cowles, Eppes, Flemming, Hawkins, Hyman, King, 
Lehman, McCotter, Moore, Norment, Olds and Price — 17. 

Whole Number 49 ; Two-thirds 33. 

The CHIEF JUSTICE. The clerk announces thirty-two 
senators as voting guilty and seventeen as not guilty, so William 
W. Ilolden is acquitted on the second article. 

The ASSISTANT CLERK, Mr. London, proceeded to 
read article III in the words following : 

Article III. 

That the said William W. Ilolden, governor of the state of 
North Carolina, on the filth day of August, in the year of our 
Lord one thousand eight hundred and seventy, in the county of 
Orange, in said state, did then and there unlawfully and without 
any lawful warrant and authority, and in defiance and subver- 


sion of the constitution and laws ot said state, and in violation 
of his oatli of office, and under color of his said office, incite, 
procure, order and command one John Ilunnicutt and other 
evil disposed persons to assault, seize, detain and imprison and 
deprive of his liberty, a citizen and resident of the county of 
Orange, in the state aforesaid, and in pursuance of said incite- 
ment, procurement, order and command, the said John Ilunni- 
cutt and the evil disposed persons aforesaid, did assault, seize, 
detain, imprison and deprive of his liberty and privileges as a tree- 
man and citizen of said county and state, for a long time, to-wit : 
For the time ot ten days or more, the said Josiah Turner, ju- 
nior, whereby the said William W. Holden, governor as afore- 
said, did then and there commit a high misdemeanor in office 
against the constitution and laws ot said state, and the peace, 
interest and dignity thereof. 

The CLERK, Mr. Saunders, proceeded to call the roll of sen a 
tors, whereupon each senator arose in his place as his name was 
called, and the chief justice asked, " How say you, is William 
W. Holden guilty or not guilty, as charged in this article of 
impeachment 2" 

The calling of the roll having been concluded, the clerk an 
nounced the vote as follows : 

Guilty.— Messrs. Adams, Albright, Allen, Battle, Brown, 
Cook, Council, Cowles, Crowell, Currie, Dargan, Edwards, 
Flemming, Gilmer, Graham of Alamance, Graham of Orange, 
Jones, Latham, Ledbetter, Linney, Love, Mauney,McClammy, 
Merrimon, Moore, Morehead, Murphy, Norment, Bobbins of 
Davidson, Bobbins of Bowan, Skinner, Speed, Troy, Waddell, 
Warren, Whiteside and Worth — 37. 

Not Guilty. — Messrs. Barnett, Beasley, Bellamy, Brogden, 
Eppcs, Hawkins, Ilyman, King, Lehman, McCotter, Olds and 
Brice— 12. 

W T hole number, 49 ; two-thirds, 33 ; voting guilty, 37. 

The CHIEF JUSTICE. The clerk announces that thirty- 
seven of the senators have voted guilty and twelve have voted 
not guilty. Thirty-seven being a concurrence of two-thirds or 


more of the senators, William W. Ilolden is convicted on 
tlie third article of impeachment. 

The ASSISTANT CLERK, Mr. London, proceeded to read 
article IY in the words following : 

Article IV. 

That said "William W. Ilolden, governor of the state of North 
Carolina, on the first day of August in the year of our Lord 
one thousand eight hundred and seventy, in the county of ( 
well, in said state, did then and there, unlawfully and without 
any lawful warrant and authority, and in defiance and sub- 
version of the constitution and laws of said state, and* in 
violation of his oath of office, and under color of his said 
office, incite, procure, order and command one George W. 
Kirk, and one B. G. Burgen, and other evil disposed per- 
sons, to assault, seize, detain and imprison, and deprive of their 
liberty and privileges as freemen and citizens of said state, Jno. 
Kerr, Samuel P. Hill, William B. Bowe, and Nathaniel M. 
Roane, citizens and residents of the county of Caswell in the 
state aforesaid ; and in pursuance of said incitement, procure- 
ment, order and command the said George W. Kirk, and tlie 
said B. G. Burgen, and the evil disposed persons atoresaid, did 
assault, seize, detain, imprison and deprive of their liberty and 
privileges as freemen and citizens of said county and state, 
a long time, to-wit : for the time of one month and more, the 
said John Kerr, Samuel P. Hill, William B. Bowe and Na- 
thaniel M. Boane, whereby the said William W. Ilolden. gov- 
ernor as aforesaid, did then and there commit and was guilty of 
a high misdemeanor in office against the constitution and laws 
of said state, and the peace, interests and dignity thereof. 

The CLEPJv, Mr. Saunders, proceeded to call the roll of 
senators, whereupon each senator arose in his place, as his name 
was called, and the chief justice asked, " How say you. is Wil- 
liam W. Ilolden, guilty or not guilty, as charged in this article 
of impeachment ?" 



The calling of the roll having been concluded, the clerk an- 
nounced the vote as follows : 

Guilty — Messrs. Adams, Albright, Allen, Battle, Brown, 
Council, Crowell, Currie, Dargan, Edwards, Gilmer, Graham 
of Alamance, Graham oi Orange, Jones, Latham, Ledbetter,. 
Linney, Love, Mauney, McClammy, Merrimon, Morehead, 
Murphy, Normen-t, Bobbins of Davidson, Bobbins of Rowan, 
Skinner, Speed, Troy, Waddell, Warren, "Whiteside and 
Worth— 33. 

Not Guilty — Messrs. Barnett, Beasley, Bellamy, Brogden, 
Cook, Cowles, Eppes, Flemming, Hawkins, Hyman, King, 
Lehman, MeCotter, Moore, Olds and Price — 10. 

Whole number 49 ; two-thirds 33 ; voting guilty 33. 

The CHIEF JUSTICE. The clerk announces that thirty- 
three senators voting guilty and sixteen senators having voted 
not guilty, this 'being a concurrence of two-thirds or more of 
the senators, William Yv r . Iloklen is convicted on this article. 

The ASSISTANT CLERK, Mr. London, proceeded to read 
article V., in the words following : 

Article Y. 

That the said William W. Iloklen, governor of the state of 
North Carolina, heretofore, to-wit : in the months of June,, 
July and August, in the year of our Lord one thousand eight 
hundred and seventy,, under the color of his said office, unlaw- 
ful! v recruited, armed and equipped as soldiers, a large number 
of men, to-wit: five hundred men and more, and organized 
them as an army and appointed officers to command, and use 
such armed men as he, the said William W. Holden, governor 
as aforesaid, under color oi his said office, might Iromtimeto 
time order and direct; that during the said months of June, 
July and August, he, the said William W. Holden, governor 
as aforesaid, under color of his said office, placed a large- 
number of said armed men under the immediate command 
und control of one George W. Kirk as colonel, aided by one 


B. G. Burgen as lieutenant-colonel, one H. C. Yates as major, 
and sundry other persons as captains and lieutenants, and sent 
such last mentioned armed men under the immediate 
command ol" George W. Kirk as colonel, B. G. Burgen as 
lieutenant-colonel, H. C. Yates as major, and said sundry 
other persons as captains and lieutenants, into the county of 
Alamance, and by the procurement, order and command of 
him, the said William W. Ilolden, governor as aforesaid, 
under color of his said office, the said armed men last 
aforesaid, seized, held, detained and imprisoned in said county 
of Alamance and by the procurement, order and command of 
him, the said William W. Holden, governor as aforesaid, 
under color of his said office, the said armed men last aforesaid, 
seized, held, detained and imprisoned in said county of Ala- 
mance, one Adolphus G. Moore, a peaceable and law-abiding 
citizen of said county, then and there engaged about his lawful 
business; that the said Adolphus G. Moore being so seized, 
held, detained and imprisoned and deprived of his liberty, was 
then and there in the custody of the said George W. Kirk, 
acting as colonel, and commanding the armed bodv of men 
last aforesaid, by the order, command and procurement of the 
said William W. Holden : That the said Adolphus G. Moore, 
being so seized, held and imprisoned and deprived of his lib- 
erty, made due application to the honorable Richmond M. 
Pearson, chief justice of the supreme court of said state, as by 
law he might do, for the writ of habeas corpus^ to the cud, 
that he, the said chief justice, might duly enquire the cause of 
said seizure, detention and imprisonment, and deliver him from 
the same according to law. That the said chief justice issued 
the writ of habeas corpus at the instance of the said Adolphus 
G. Moore, directed to the said George W. Kirk, commanding 
him forthwith to produce the body of the said Adolphus G-. 
Moore, before him the said chief justice, at the chamber of the 
supreme court in the city of Ealeigh, in said state; thai the 
said George W. Kirk was, on the seventeenth day of July, in 
the year of our Lord one thousand eight hundred and .-<\ vnty. 


in the county of Alamance, duly served with the said writ of 
habeas corpus / that he made no return of or to the same, as 
required by law, and refused to produce the body of the said 
Adolphus G. Moore, before the chief justice according to the 
exigency of said writ, avowing and declaring that he had made 
such seizure, and detained and imprisoned the said Adolphus 
G. Moore, at the instance of and by the procurement, command 
and order of the said William W. Ilolden, governor as afore- 
said, and would not produce the body of him, the said Adol- 
phus G. Moore, before the chief justice, according to the exi- 
gency of said writ, unless compelled to do so by superior armed 
force, or by the express order and command of the said William 
W. Ilolden, governor as aforesaid, that such refusal of the said 
George W. Kirk to obey said writ, was made duly to appear 
before the said chief justice, whereupon the said chief justice 
made enquiry of the said William W. Ilolden, governor as 
aforesaid, if he had so ordered the said George W. Kirk, to so 
seize, detain and imprison the said Adolphus G. Moore ; that 
the said William W. Ilolden, governor as aforesaid, made an- 
swer in substance, and to the effect, to said enquiry of said 
chief justice, that he had theretofore ordered and commanded 
the said George W. Kirk to so seize, detain and imprison and 
deprive of his liberty, the said Adolphus G. Moore, and that 
such seizure and deiention was made by his order and com- 
mand, whereupon the said chief justice, upon due consideration, 
.solemnly adjudged in substance and effect that according to 
the constitution and laws of said state, the privilege of the writ 
of habeas corpus was not suspended, and that the said George 
W. Kirk, and the said William W. Ilolden, governor as aforesaid, 
were in duty bound to bring and produce the body of the said 
Adolphus G. Moore, before him, the said chief justice, accord- 
ing to the exigency of the said writ; yet the said William W. 
Ilolden, governor as aforesaid, unmindful of his most solemn 
oath of office, and his high duties as the executive of said 
state, and contriving, and then and there intending to de- 
prive the said Adolphus G. Moore of his liberty, as a free citi- 


zen of said state, and to defy and subvert the constitution 
and laws of said slate, declared that he had so ordered, 
and did still so order and commanded the said George W. 
Kirk not to obey the said writ so issued by the said chief jus- 
tice, then and there declared to the said chief justice, that 
he, the said William W. Ilolden, governor as aforesaid, 
would not obey the said writ, or the command of the said chief 
justice, in that behalf, and that he -would not allow the said 
George W. Kirk to obey the same and produce the body of the 
said Adolphus G. Moore, before the said chief justice, accord- 
ing to the exigency of said writ, until such time, as in his dis- 
cretion, he might think proper to do so ; that while the said 
William W. Ilolden, governor as aforesaid, so seized, held, de- 
tained, imprisoned and deprived of his liberty, the said Adol- 
phus G. Moore, and so refused to obey the said writ, and to 
command the said George W. Kirk so to do, and so resisted 
the laws and the lawful authority of the said chief justice, he 
was by his own procurement, order and command, supported in 
that behalf by the means and use of said armed men so com- 
manded and controlled as aforesaid, and so the said William 
W. Ilolden, governor as aforesaid, did, in the way and manner, 
and by the means aforesaid, procure, order and command 
the said George W. Kirk, so charged by said writ of habeas 
corpus to refuse to make due return of or to the same, and 
produce the body of the said Adolphus G. Moore, before the said 
chief justice, according to the exigency of the said writ, and 1 1 1 
resist the same and the lawful authority of the said chief 
justice, and did himself, then and there in the way and manni r 
and bv the means aforesaid, resist the due execution of the 
said writ and the lawful authority of the said chief justice, 
and did then and there in the way and manner, and bj the 
means and armed force aforesaid, suspend the privilege of the 
writ of habeas eorp%t8 t and did unlawfully and violently seize, 
detain, hold, imprison and deprive of his liberty the said Adol- 
phus G. Moore, and lor a long time, to-wit : for the span,' of 
one calendar month, after the said chief justice had adjudged 


such detention illegal, did continue to hold and detain and 
cause to be held and detained said Adolphus G. Moore, aod 
did in the way and manner and bv the means aforesaid, make 
the military supersede and prevail over the lawful civil power 
of the state, all ot which acts, matters and things, the said 
William W. Ilolden, governor as aforesaid, did, in violation as 
aforesaid, of his solemn oath of office, and whereby he, the 
said William W. Holden, governor as aforesaid, did then and 
there commit high crimes and misdemeanors in office, against 
the constitutution and laws of said state, and the peace, dignity 
and interests thereof. 

The CLEEK, Mr. Saunders, proceeded to call the roll ot 
senators, whereupon each senator arose in his place, as his name 
was called, and the chief justice asked, "How say you, is Wil- 
liam W. Ilolden guilty or not guilty, as charged in this article 
ut impeachment. 

The calling of the roll having been concluded, the clerk an- 
nounced the vote as follows : 

Guilty — Messrs. Adams, Albright, Allen, Battle, Brown, 
Cook, Council, Cowles, Crowell, Currie, Dargan, Edwards, 
Flcinming, Gilmer, Graham of Alamance, Graham of Orange, 
Hawkins, Jones, Latham, Ledbetter, Lehman, Linney, Love, 
Mauney, McClammy, McCotter, Merrimon, Moore, Morehead, 
Murphy, Norment, Bobbins of Davidson, Bobbins of Bowan, 
Skinner, Speed, Troy, Waddell, Warren, Whiteside and 
Worth— 40. 

Not Guilty — Messrs. Barnett, Beasley, Bellamy, Brogden, 
Eppes, iryman, King, Olds and Price — 9. 

Whole number 40 ; two-thirds 33 ; voting guilty 40. 

The CHIEF JUSTICE. The clerk reports forty senators 
as having voted guilty and nine as having voted not guilty, 
there being a concurrence of two-thirds or more of the senators, 
William W. Ilolden is convicted in this article. 

The ASSISTANT CLEEK, Mr. London, proceeded to read 
article VI, in the words following : 


Article VI. 

That the said William W. Holden, governor of the state ot 
North Carolina, heretofore, to-wit , in the months of June, 
July and August, in the year of our Lord one thousand eight 
hundred and seventy, under color of his said office, unlawfully 
recruited, armed and equipped as soldiers, a large number of 
men, to-wit, five hundred men and more, and organized them 
as an army, and. appointed officers to command and use such 
armed men as he, the said William W. Holden, governor as 
aforesaid, under color of his said office, might from time to time 
order and direct ; that during the said months of June, July 
and August, he, the said William W. Holden,' governor as afore- 
said, under color of his said office, placed a large number of 
said armed men under the immediate command and control of 
one George W. Kirk, as colonel, aided by one B. G. Burgen, 
as lieutenant-colonel, one II. C. Yates, as major, and sundry 
other persons as captains and lieutenants, and sent such last 
mentioned armed men under the immediate command of 
George W. Kirk, as colonel, B. G. Burgen, as lieutenant colonel, 
H. C. Yates, as major, and said sundry other persons as captains 
and lieutenants, in the county of Caswell, and by the procure 
ment, order and command of him, the said. William W. Holden, 
governor as aforesaid, under color of his said office, the said 
armed men last aforesaid seized, held, detained and imprisoned 
in said county of Caswell, John Kerr, Samuel P. Hill, J< 
C. Griffith, Frank A. Wiley, J. T. Mitchell, Thomas J. Wo- 
mack, A. G. Yancey, John McKee, A. A. Mitchell, Yancey 
Jones, J. M. Neal, William B. Bo we, Barzillai Graves, Na- 
thaniel M. Boane, Robert Roane, James Tt. Fowler, M. Z. 
Hooper, James C. Williamson and Peter II. Williamson, peace* 
able and law abiding citizens of said county, then and there 
engaged about their lawful business; that the said John Kerr, 
Samuel P. Hill, Jesse C. Griffith, Frank A. Wiley, J. T. 
Mitchell, Thomas J. Womack, A. G. Yancey, John McKee, 
A, A. Mitchell, Yancey Jones, J. M. Real, William B. Bone, 


Barzillai Graves, Nathaniel M. Roane, Robeit Roane, James 
R. Fowler, M. Z. Hooper, James C. Williamson and Peter EL 
Williamson, being so seized, held, detained and imprisoned, 
and deprived of their liberty, were then and there in the cus- 
tody of the said George W. Kirk, acting as colonel and com- 
manding the armed body of men last aforesaid, by the order, 
command and procurement of the said William W. Ilolden, 
governor as aforesaid ; that the said John Kerr, Samuel P. 
Hill, Jesse C. Griffith, Frank A. Wiley, J. T. Mitchell, Thomas 
J. Womack, A. G. Yancey, John McKee, A. A. Mitchell, 
Yancey Jones, J. M. Neal, William B. L^.owe, Barzillai Graves, 
Nathaniel M. Roane, Robert Roane, James R. Fowler, M. Z. 
Hooper, James C. Williamson and Peter II. Williamson, being 
so seized, held and imprisoned and deprived of their liberty, 
made due application to the honorable Richmond M. Pearson, 
chief justice of the supreme court of said state, as by law they 
might do, for the writ of habeas corjms, to the end that he, the 
said chief justice, might duly enquire the cause of said seizure, 
detention and imprisonment, and deliver them from the same 
according to law ; that the said chief justice issued the writ of 
habeas corpus at the instance of the said John Kerr, Samuel P. 
Hill, Jesse C. Griffith, Frank A. Wiley, J. T. Mitchell, Thomas 
J. Womack, A. G. Yancey, John McKee, A. A. Mitchell, 
Yancey Jones, J. M. Neal, William B. Bowe, Barzillai Graves, 
Nathaniel M. Roane, Robert Roane, James R. Fowler, M. Z. 
Hooper, James C. Williamson, and Peter II. Williamson, 
on the twenty -sixth day of July, in the year of our Lord one 
thousand eight hundred and seventy, directed to the said Geo. 
W. Kirk, commanding him forthwith to produce the bodies of 
the said John Kerr, Samuel P. Hill, Jesse C. Griffith, Frank 
A. Wiley, J. T. Mitchell, Thomas J. Womack, A. G. Yancey, 
John McKee, A. A. Mitchell, Yancey Jones, J. M. ISTeal, Wil- 
liam B. Bowe, Barzillai Graves, Nathaniel M. Roane, Robert 
Roane, James R. Fowler, M. Z. Hooper, James C. Williamson 
and Peter II. Williamson, before him, the said chief justice, 
at the chamber of the supreme court in the city of Raleigh, 


in said state ; that the said George W. Kirk was, on the first 
day of August, in the year of our Lord one thousand eight 
hundred and seventy, in the county of Caswell, duly served 
with the writ of habeas corpus / but instead of making due 
return to the said writ, stated that "I hold the said prisoners 
under orders from W. W. Holden, governor and commander- 
in-chief of militia," and refused to produce the bodies of 
the said John Kerr, Samuel P. Hill, Jesse C. Griffith, Frank 
A. Wiley, J. T. Mitchell, Thomas J. Womack, A. G. Yancey, 
John McKee, A. A. Mitchell, Yancey Jones, J. M. Neal, Wil- 
liam B. Bowe, Barzillai Graves, Nathaniel M. Roane, Robert 
Roane, James R. Fowler, M. Z. Hooper, James C. Wil- 
liamson and Peter II. Williamson, before the said chief 
justice, according to the exigencies of the said writ, and 
thereafter the said George W. Kirk continued tu hold 
and detain and deprive of their liberty, the said John 
Kerr, Samuel P. Hill, Jesse C. Griffith, Frank A. Wiley, 
J. T. Mitchell, Thomas J. Womack, A. G. Yancey, John 
McKee, A. A. Mitchell, Yancey Jones, J. M. Neal, Wil- 
liam B. Bowe, Barzillai Graves, Nathaniel M. Roane, 
Robert Roane, James R. Fowler, M. Z. Hooper, James C. 
Williamson and Peter H. Williamson, for a long time, to-wit : 
for the space of one calendar month, the said seizure and de- 
tention of the said John Kerr, Samuel P. Hill, Jesse C. Griffith, 
Frank A. Wiley, J. T. Mitchell, Thomas J. Womack, A. G. 
Yancey, John McKee, A. A. Mitchell, Yancey Jones, J. M. 
Neal, William B. Bowe, Barzillai Graves, Nathaniel M. Roane, 
Robert Roane, James R. Fowler, M. Z. Hooper, James ( '. 
Williamson and Peter II. Williamson, by the said George W. 
Kirk, and the military force under his command, as aforesaid, 
having been made and continued as aforesaid, by the orders 
of the said William W. Holden, governor of the state aforesaid, 
he, the said William W. Holden, governor as aforesaid, well 
knowing that the privilege of the writ of habeas corpus was not 
suspended, and that the said John Kerr, Samuel P. liill, Jesse 
C. Griffith Frank A. Wiley, J. T. Mitchell, Thomas J. 


Womack, A. G. Yancey, John McKee, A. A. Mitchell, Yancey 
Jones, J. M. Neal, William B. Bowe, Barzillai Graves, 
Nathaniel M. Roane, Robert Roane, James R. Fowler, M. Z. 
Hooper, James C, Williamson and Peter H. Williamson were 
so detained without authority of law, whereby he, the said 
William W. Holden, governor, as aforesaid, did then and 
there commit high crimes and misdemeanors in office against 
the constitution and laws of said state, and peace, dignity 
and interests thereof. 

The CLERK, Mr. Saunders, proceeded to call the roll of 
senators, whereupon each senator arose in his place as his 
name was calkd, and the chief justice asked, "How say you, 
" is William W. Holden guilty or not guilty, as charged in 
' this article of impeachment." 

The calling of the roll having been concluded, the clerk 
announced the vote as follows : 

Guilty — Messrs. Adams, Albright, Allen, Barnett, Battle, 
Brown, Cook, Council, Cowles, Crowell, Currie, Dargan, 
Edwards, Flemming, Gilmer, Graham or Alamance, Graham 
of Orange, Hawkins, Jones, Latham, Ledbetter, Lehman, 
Linney, Love, Mauney, McClammy, McCotter, Merrimon, 
Moore, Morehead, Murphy, Norment, Bobbins of Davidson, 
Robbing of Rowan, Skinner, Speed, Troy, Waddell, Warren, 
Whiteside and Worth— 41. 

Not Guilty — Messrs. Beasley, Bellamy, Brogden, Eppes, 
Hyman, King, Olds and Price — 8. 

Whole number, 49; two-thirds, 33; voting guilty, 41. 

The CHIEF JUSTICE. The clerk reports forty-one semv 
tors as having voted guilty and eight senators as having 
voted not guilty. There being a concurrence of two-thirds 
or more of the senators, William W. Holden is convicted on 
the sixth article. 

The ASSISTANT CLERK, Mr. London, proceeded to read 
Article VII, in the words following : 

tkial of william w. iiolden. 2553 

Article vIL 

That the said William W. Ilolden, governor of Korth Caro- 
lina, unmindful of his high duty to uphold and protect tho 
constitution and laws of said state, and the good name, dignity 
and honor of the people thereof, and unmindful of the obliga- 
tion of his solemn oath of office, under color of his said office 
did, in the months of June,, July and August, in the year of 
our Lord one thousand eight hundred and seventy, in said 
state, without any authority of law, but in contravention and 
subversion of the constitution and laws of said state and the 
United States, and intending to provoke and stir up civil strife 
and war, recruit and call together from this state and the state 
of Tennessee, a large number of men, to wit: five hundred 
men and more, many of them of the most reckless, desperate, 
ruffianly and lawless characters, and did then and there or- 
ganize, arm and equip them as an army of soldiers, and place 
the same under the chief command of a notorious desperado 
from the state of Tennessee, by the name of George W. Kirk, 
having falsely proclaimed the counties of Alamance and Cas- 
well in said state in a state of insurrection, and did send large 
numbers of such armed desperate men into said counties, under 
the immediate command of the said George W. Kirk and two 
other desperadoes from the state of Tennessee, to wit : one I>. 
G. Burgen and one II. C. Yates, and did there and then, 
without any warrant or authority, seize, hold, imprison and 
deprive of their liberty for a long time, to wit, for the time of 
twenty days and more, many of the peaceable and law-abiding 
citizens of said counties, to wit: John Kerr, Samuel P. Hill, 

■ Scott, John It. Ireland and many others; and seize, hold, 

imprison and deprive of their liberty, and hang by the neck 
William Patton, Lucien II. Murray and others, and did thrust 
into a loathsome dungeon Josiah Turner, junior, and F. A. 
Wiley; and to maintain, support and aid the lawless armed 
men so organized, armed and equipped, did, under color of 
his said office, from time to time, during the said months of 


June, July and August, without any lawful authority, make 
his warrant upon David A. Jenkins, treasurer of the state, for 
large sums of money, to wit : lor the sum of seventy thousand 
dollars or more, and cause and procure the said David A. Jen- 
kins, the treasurer of the state, to recognize such unlawful war- 
rant, and pay out of the treasury such said large sums of money 
to the agent or paymaster of the said William "W". Ilolden, 
governor as aforesaid, for the unlawful uses and purposes 
aforesaid ; whereby the said William W. Ilolden, governor 
as aforesaid, did then and there, and by the means and in 
the manner aforesaid, commit a high misdemeanor in office, 
in violation of the constitution and laws of the state, and of 
the peace and interests and dignity thereof. 

The CLERK, Mr. Saunders, proceeded to call the roll of 
senators, whereupon each senator, as his name was called, arose 
in his place and the chief justice put the question, "How say 
you, is William W. Ilolden guilty or not guilty, as charged in 
this article." 

The calling of the roll having been concluded the clerk an- 
nounced the vote as follows : 

Guilty — Messrs. Adams, Albright, Allen, Battle, Brown, 
Cook, Council, Cowles, Crowell, Currie, Dargan, Edwards, 
Gilmer, Graham of Alamance, Graham of Orange, Jones, 
Latham, Ledbetter, Linney, Love, Mauney, Mc-Clammy, Mc- 
Cotter, Merrirnon, Morehead, Murphy, Norment, Robbins of 
Davidson, Robbins of Rowan, Skinner. Speed, Troy, Waddell, 
Warren, Whiteside and Worth— 30. 

AW Guilty — Messrs. Harnett, Beasley, Bellamy, I>rogden, 
Eppes, Fleruming, Hawkins, Hyman, King, Lehman, Moore, 
Olds and Price— 13. 

Whole number, 40; two-thirds, 33; voting guilty, 36. 

The CHIEF JUSTICE. The Clerk announces thirty-six 
senators as having voted guilty and thirteen as having voted 
not guilty. There being a concurrence of two-thirds or more 
of the senators William W. Ilolden is convicted on this article. 


The ASSISTANT CLERK, Mr. London, proceeded to read 
the eighth article in the words following: 

Article VIII. 

That the said William W. Ilolden, governor of the said state, 
unmindful of the high duties of his said office, and the obliga- 
tions oi his solemn oath of office, and contriving and intending, 
and with a view and lor the purpose of supporting and main- 
taining an armed military force in said state, which he had 
then and there recruited, organized and formed for illegal pur- 
poses, without the sanction of the constitution and laws of the 
said state, but in contravention ot the same, did from time to 
time in the months of June, July and August, in the year of 
our Lord one thousand eight hundred and seventy, under color 
of his said office, in said state, without the sanction of the con- 
stitution and laws of said state, and in violation of the same, 
make his warrants as such governor upon the treasury of the 
said state, for large sums of money, to-wit: for the sum of 
eighty thousand ($80,000) dollars and more, to be used for the 
unlawful purposes aforesaid ; that the said William W. Ilolden, 
governor as aforesaid, under color of his said office, then and 
there persuaded, commanded, incited and procured David A. 
Jenkins, treasurer of said state, to recognize such and said un- 
lawful warrants on the treasury of said state, and to deliver 
such and said sums of money to such agents of the said William 
W. Ilolden, governor as aforesaid, as he the said William W. 
Ilolden. governor as aforesaid, might from time to time desig- 
nate and appoint ; that in pursuance of such warrants and orders 
of the said William W. Ilolden, governor as aforesaid, thesaid 
David A. Jenkins, treasurer as aforesaid, delivered to one A. 
D. Jenkins, called the paymaster, appointed by the said William 
W. Ilolden, governor as aforesaid, for such purpose, large sums 
of money from said treasury, to-wit : the sum of forty thou and 
dollars or more ; that thereafter, to-wit: in the Month of Au- 
gust, in the year of our Lord one thousand eight hundred and 


seventy, one Richard M. Allison, a citizen of the county of 
Iredell, in said state,, brought his suit in the superior court of 
the last named county, in his own behalf, and in the behalf of 
all the tax payers of said state, praying that a writ of injunc- 
tion might then and there be granted, and issued according to 
law, restraining the said David A. Jenkins, treasurer as afore- 
said, from delivering any sum or sums of money to the said 
William W. Ilolden, governor as aforesaid, or an}* other per- 
sons in obedience to such orders and for such purposes, and also 
restraining the said A. D. Jenkins, as such paymaster, or in any 
other respect or capacity from disbursing or disposing of said 
sum of money so in his said hands or any part thereof, for the 
purposes thereof. That the Honorable Anderson Mitchell, 
judge of said superior court, then and there granted the writ of 
injunction so prayed for, enjoining and forbidding the said 
David A. Jenkins, treasurer as aforesaid, from delivering any 
money from said treasury, in obedience to any such warrant or 
order, so made by the said William "W. Ilolden, governor as 
aforesaid, and enjoining and forbidding the said A. D.Jenkins, 
as such paymaster or agent, from using or disbursing the said 
money or any part of it, so in his hands, to or for the use of 
said armed body of men for any of the purposes aforesaid ; that 
the said David A. Jenkins, treasurer, and the said A. D. Jen- 
kins, were each duly served with said writ of injunction, but 
nevertheless, the said William W. Ilolden, governor as afore- 
said, wickedly intending to suspend and subvert the laws of 
said state, and to defy and disregard the lawful authority ot 
said court, did afterwards, to-wit : after the month last aforesaid, 
persuade, incite, order, procure and command the said A. D. 
Jenkins to defy and disregard the said writ of injunction, 
and to deliver the said money so in his custody to another 
agent of the said William W. Ilolden, governor as aforesaid, 
to he used for the unlawful purposes aforesaid ; that the said 
A. D. Jenkins, in obedience to such last mentioned order, com- 
mand and piocurcment of the said William W. Ilolden, gov- 
ernor as aforesaid, and in disregard of such writ of injunction 


and the lawful authority of said judge, did deliver the said 
money so in his hands to another agent of the said William 
TV". Ilolden, governor as aforesaid, to-wit, to one John B. 
Xeathery, to be used for the unlawful purpose aforesaid, and 
the said William W. Ilolden, governor as aforesaid, did then 
and there in the way and manner, and by the means and for 
the purpose aforesaid, procure, order and command the said A. 
D. Jenkins so to disregard and disobey the said writ of injunc- 
tion and the lawful authority of said judge, and did then and 
there, and in the way and manner and by the means and for 
the unlawful purpose aforesaid, defy, disregard, ignore, contra- 
vene, suspend and defeat the lawful purpose and effect of the 
writ of injunction so granted and issued by the said judge; 
and thereupon and thereafter the said "William W. Ilolden, 
governor as aforesaid, the said sum of public money thus trans- 
ferred as aforesaid to the hands of the said John B. "Neathery, 
did order and cause to be paid out and disbursed by him, the 
said John B. ISTeathery, to, for and about the illegal purposes 
aforesaid, to-wit, the payment of the expenses in keeping on 
foot, sustaining and maintaining the said illegal military force 
as aforesaid ; whereby the said William W. Holder., governor 
as aforesaid, was then and there guilty of a high misdemeanor 
in his said office in violation of his oath of office, and in sub- 
version of the laws of said state, and the peace, interests and 
dignity thereof. 

The CLERK, Mr. Saunders, proceeded to call the roll of sena- 
tors, whereupon each senator, as his mime was called, arose in 
his place, and the chief justice asked, "How say you, is 
" William W. Holden guilty or not guilty, as charged in this 
" article of impeachment." 

The calling of the roll having been concluded, the clerk 
announced the vote as follows : 

6'u/%— Messrs. Adams, Albright, Allen, Battle, Brown, 
Cook, Council, Cowles, Crowell, Currie, Dargan, Edwards, 
Flemming, Gilmer, Graham of Alamance, Graham of* Orange, 
Jones, Latham, Ledbetter, Linney, Love, "Mauney, McCUnniny, 


Merriraon, Morelieacl, Murphy, Norment, Bobbins of David- 
son, Bobbins of Rowan, Skinner, Speed, Troy, Waddell, 
Warren, Whiteside and Worth— 36. 

Not Guilty — Messrs. Barnett, Beasley, Bellamy, Brogden, 
Eppes, Hawkins, Hyman, King, Lehman, Mc Cotter, Moore, 
Olds and Brice — 13. 

Whole number, 49 ; two-thirds, 33 ; voting guilty, 36. 

The CHIEF JUSTICE. The clerk announces thirty six 
senators as having voted guilty and thirteen as voting not 
guilty. There being a concurrence of two-thirds or more of 
the senators, William W. Holden stands convicted on this 

Mr. Manager SFABROW. Mr. Chief Justice, it having 
been announced by the presiding officer that the respondent, 
William W. Holden, governor of North Carolina has been 
convicted on six of the eight articles preferred against him, 
the managers, speaking through me as their chairman, and 
in the name of the house of representatives and of all the 
people of North Carolina, demand that the court proceed to 
judgment agaisnt the respondent in this his conviction. 

Senator GBAIIAM, of Orange, offered the following, which 
the clerk proceeded to read : 

" The State of North Carolina. 

" The Senate of North Carolina, 

"March 22, 1871. 


" Whereas, The house of representatives of the state of North 
" Carolina did, on the 26th day of December, 1870, exhibit to 
"the senate ai tides of impeachment against William W. IIol- 
"den, governor of North Carolina, and the said senate, after a 
" full hearing and impartial trial has, by the votes of two- thirds 
" of the members present, this day determined that the said 


" William W. Holden is guilty as charged in the 3d, 4th, 5th, 
" 6th, 7th and 8th of said articles : 

" Now, therefore, it is adjudged by the senate of North Caro- 
lina sitting as a court ot impeachment, at their chamber 
"in the city of Raleigh, that the said William W. Holden 
" be removed from the office of governor and be disqualified 
" to hold any office of honor, trust or profit under the state of 
" North Carolina. 

"It is further ordered, that a copy of this judgment be en- 
" rolled and certified by the chief justice as presiding officer, 
" and the principal clerk of the senate, and that such certified 
" copy be deposited in the office of secretary of state. 

Senator JONES. Mr. Chief Justice, as there is no rule of 
the court requiring the ayes and noes, I ask that the vote on 
the order offered by the senator from Orange, [Mr. Graham] 
be taken by the ayes and noes. 

Senator BARNETT. At the suggestion of one of the coun- 
sel for the respondent, I ask tor the reading of section 12 of 
the act referring to proceedings on impeachment. 

The CLERK proceeded to read in the words following : 

" Upon a conviction of the person impeached, judgment may 
" be given that he be removed from office, or that he be dis- 
" qualified from holding any office of trust or profit under this 
" state, or both, but no other judgment can be pronounced." 

The CHIEF JUSTICE. Is the court ready for the ques- 

Several Senators called for the question. 

A sufficient number seconding the call for the ayes x noee, 
they were ordered. 

Senator MOORE. Mr. Chief Justice, before the vote la 
taken, with the permission of the court, I would like to make 
a statement in regard to the vote I am about to cast. I would 
not object to the order offered by the senator from ( hrange, [Mr. 
Graham,] if it merely pronounced a judgment removing the 
respondent from his office. I think that undei the evidence 



which has been elicited in the case the penalty providing for 
the disqualification of the respondent to ever hold office in this 
state is severe. Because that feature is included in the judg- 
ment, I shall be compelled to vote against the order. 

The CLERK, Mr. Saunders, proceeded to call the roll of 
senators on the adoption of the order offered by Senator Gra- 
ham, of Orange, and it was decided in the affirmative by the 
following vote : 

Ayes — Messrs. Adams, Albright, Allen, Battle, Brown, 
Cook, Council, Cowles, Crowell, Currie, Dargan, Edwards, 
Flemming, Gilmer, Graham of Alamance, Graham of Orange, 
Jones, Latham, Leclbetter, Linney, Love, Mauney, McClammy, 
Herri mon, Horehead, Murphy. Norment, Bobbins of David- 
son, Bobbins of Bo wan, Skinner, Speed, Troy, Waddell, 
Warren, "Whiteside and Worth — 36. 

Noes — Messrs. Barnett, Beasley, Bellamy, Brogden, Eppes, 
Hawkins, Hyman, King, Lehman, McCotter, Moore, Olds and 
Price— 13. 

Senator BOBBINS, of Bowan. Mr. Chief Justice, I arise 
to inquire whether the judgment of the court is not to be 
signed and certified in presence of the court before it shall 
adjourn sine die. 

The CHIEF JUSTICE. The presiding officer is aware of 
no rule requiring that. He cannot sec how the signing of it 
out of court will affect the validity of the verification if it is 
signed by the presiding officer and countersigned by the 
principal clerk. However, that is a matter for the senate. 

Senator GILMEB. In order to avoid any possible difficulty 
about the matter, I move that the clerk be directed forthwith 
to have a copy of the order prepared for yours and his signa- 

The CHIEF JUSTICE put the question on the motion 
of senator Gilmer, and it was decided in the affirmative. 

Senator MUBPIIY offered the following order : 

" Ordered, That no opinion that may be filed in this case in 


" accordance with tlic rule of the senate, allowing the same, 
" shall exceed twenty pages of the printed report in the trial." 

Senator BROGDEN. Mr. Chief Justice, I don't see how 
the court can adopt with propriety an order of the kind just 
proposed. I propose myself to file an opinion, but I certainly 
should not know when to stop to make twenty pages of the 
printed report of the proceedings. I have no experience 
which will enable me to determine how many pages of foolscap 
will make that amount of printed matter. I think the order 
is unnncessary and should not be adopted. 

Senator JONES. Mr. Chief Justice, after a consultation 
with some of the senators, who desire to file opinions, it was 
agreed that twenty pages of printed matter would be the out- 
side limit which any senator would require for the opinion he 
should file. I am satisfied myself that the senator from Wayne, 
[Mr. Brogden,] will fall far short in his opinion, of the space 

The CHIEF JUSTICE put the question on the adoption of 
the order of senator Murphy, and it was decided in the affirma- 

Senator GRAHAM, of Orange, offered the following order : 

" Ordered, That the clerk of the senate be directed to ha 1 
" prepared a printed and complete index of the proceedings on 
" the trial. 

Senator LOVE. I ask the ayes and noes on the adoption of 
the order. 

Not a sufficient number seconding the call, the ayes and noes 
were not ordered. 

The CHIEF JUSTICE put the question on the motion on 
the adoption of the order offered by Senator Graham, of 
Orange, and it was decided in the affirmative. 

Senator COW LES. Mr. Chief Ju I desire, before the 

court shall finally adjourn, to say that I regret that the court 


did not take a day to mature and consider its judgment. I 
am by no means satisfied with the propriety of the disqualify- 
ing clause contained in the order of judgment adopted. I 
simply desire to make this statement and ask that it appear in 
the published proceedings. 

Senator MOORE. Mr. Chief Justice, the order of judg- 
ment having been signed by the presiding officer and principal 
clerk, I move that the senate, sitting as a court of impeachment, 
do now adjourn sine die. 

The CHIEF JUSTICE put the question on the motion of 
Senator Moore, and it was decided in the affirmative. 

So the Court of Impeachment adjourned sine die. 


House of Representatives, 
March 22d, 1871. 

The Senate having, by message, given the house of represen- 
tatives notice that it will proceed to vote on the articles of im- 
peachment against W. W. Holden to-day at 11 a. m ; therefore 

Resolved, That at 11 o'clock the house resolve itself into a 
committee of the whole, and proceed to the senate chamber in 
the following order : 

1st. Managers, two and two, headed by their chairman; 

2d. The speaker of the house ; 

3d. The chairman of the committee ot the whole ; 

4th. The clerks oi the house ; 

5th. The members, two and two ; 

6th. The doorkeepers. 

Introduced by Mr. Robinson and adopted by house of repre- 
sentatives March 22nd 1871. 

Refort of the, Committee of the W/iole, made to tJie House of 
llejpresentatives, March 22^/1871. 

The house having resolved itself into a committee of the 
whole, proceeded to the senate chamber at 11 o'clock to receive 
the vote of the senate on the articles ot impeachment, exhibited 
by the house of representatives against W. W. Holden, gover- 
nor of North Carolina, for high crimes and misdemeanors in 
office. The committee having returned to their chamber, beg 
to report, 

1st. That W. W. Holden was found guilty as charged in 
articles 3, 4, 5, 0, 7 and 8 ; 


2d. The said W. W. Ilolden was found not guilty as charged 
in articles 1 and 2. 

The respondent having been convicted on said 3d, 4th, 5th, 
Cth, 7th and 8th articles, the senate sitting as a court of im- 
peachment proceeded to adjudge that the said W. W. Holden, 
governor, be deposed from office and forever disqualified from 
holding any office of profit or trust in this state. The com- 
mittee ask to be discharged. 

Errata.— The foregoing Report was hurried through the press by order of 
the Court, that eaeh day's proceedings might be laid on Senators' desks the suc- 
ceeding day. It was the purpose also of the Managers, at the close of the trial, 
to revise and re-print the entire Report. These two causes combined led to 
numerous typographical errors in this edition. Whether the work will be revised 
and re-printed remains with the Legislature. In the paging of the Report there 
are several errors; the most remarkable of which occurs in Gov. Graham's final 
argument — the numbers of the 16 pages 2303 to 2318, inclusive, have been repeated 
on the succeeding 1G pages, though the matter is in its proper order. 

^jpp;en"jji:x isto. i. 



I have taken an oath, to return a verdict in this case accord- 
ing to the law and the evidence. I occupy substantially the 
position of a juror, bound by the same obligation and con- 
trolled by the same established rules of law. In accordance 
with my honest conviction, after long and earnest considera- 
tion, I am compelled to vote the respondent guilty on the 3d, 
5th and 6th articles of impeachment. I know not how my 
vote will effect my political prospects hereafter, but this much 
I do know, that I intend to obey the dictates of ray honest 
judgment, and trust to the people to vindicate me from the 
foul aspersions of those who would take advantage of my 
honesty and candor to subserve their own political advance- 
ment. If I go down because of my course in this trial, 1 
shall do so in communion with my own conscience. If be- 
cause I will not perjure myself, I must suffer political martyr- 
dom, I say let me perish, for I had rather live an obscure life 
than occupy the highest position in the gift of the people, 
with the heinous crime of perjury resting upon my soul 

The first article of impeachment charges substantially as 
follows : 

Raising unlawful armed bodies of men and, without, cause 
declaring the county of Alamance in a state of insurrection, 
and afterwards unlawfully arrested Lucien H. Murray and 
some eighty-one other citizens of Alamance, and unlawfully 
detaining them, when there was no insurrection, and when 


the civil officers of the law were in the full exercise of all 
their functions. 

The second article charges the same as to Caswell — arrest- 
ing John Kerr and seventeen other citizens of that county. 

The fourth article charges the unlawfully arresting and 
detaining in the County of Caswell John Kerr and three 
other citizens. 

Upon the above three articles I voted not guilty, for the 
reasons, I believed that under the provisions of the act to se- 
cure the better protection of life and property, ratified the 29th 
eay of January, A. D. 1870. The governor had the right, 
" whenever in his judgment the civil authorities of any county 
were unable to protect its citizens in its enjoyment of life and 
property, to declare such county to be in a state of insurrection, 
to arrest all suspected persons, and do all things necessary to 
suppress the insurrection which did not come in conflict with 
the plain and express provisions of the constitution. Tho 
governor declared the counties of Alamance and Caswell 
to be in a state of insurrection. Claiming to act under this statute, 
and as the statute confides the question of insurrection solely 
to bis judgment, and as I believe the very state of affairs existed 
in these counties which was contemplated by the statute, it is 
my pleasure to vote him not guilty. The question of the con- 
stitutionality of the act has no force on my mind. It was his 
duty, as the executive officer of the state, to rigidly enforce the 
law until declared unconstitutional by the proper court in its 
< i ftctal capacity, except flic act had been palpably in viola- 
tion of tbe constitution and it so appeared upon its face. A 
contrary doctrine to this would be ruinous; but think of it, to 
allow the governor to assume the judicial ermine and pass 
upon the acts of the legislature, as to their constitutional- 
ity or unconstitutionality, would be to consolidate the execu- 
tive, legislative and judicial departments of the government 
into one, which doctrine is repugnant to every man who desires 
to see republican principles flourish and prosper. 


The third article of impeachment charges substantially as 
follows : 

The unlawful arresting of Josiah Turner, jr., in the county 
ot Orange and imprisoning him. 

Upon this article I voted guilty, because I believed from the 
testimony of Mr. Gorman that the governor knew of the arrest 
of Mr. Turner in Orange by his agent, or if he did not know 
it at the time, he made the act of his agent his own by endors- 
ing it. This is too plain a proposition of law to admit of argu- 
ment. The governor had the power and authority to have 
had Mr. Turner released after he learned he was so unlawfully 
arrested ; this he could have done with a stroke of his pen, yet 
he refused to do it, but stood by and saw Mr. Turner thrusted 
into a dungeon with a condemned felon, and kept him so con- 
fined for the space of twenty days or more. I am not willing 
that the precedent should be established in North Carolina of 
the governor having the right to arrest and confine respectable 
citizens of the state without warrant or authority of law. 

The fifth article of impeachment charges substantially as 
follows : 

Hetusing to obey the writ of habeas corpus, in the case of 
Adolphus G. Moore. 

The sixth article charges substantially as follows: 

Refusing to obey the writ of habeas corpus in the case of 
John Kerr and eighteen other citizens of Caswell county. 

Upon the 5th and 6th articles I voted guilty, because the 
governor refused to obey the sacred writ of Jidbeas corpus^ 
which has been handed down to us by our forefathers, and 
which cost so much of the treasure and blood ot our English 
ancestors. This writ, which has from time immemorial, been 
guarded with a jealous eye by the American people, and 
properly considered the great fundamental principle essentia] 
to the protection of civil liberty. The governor refused to obey 
this writ after it had been judicially decided by the honorable 
Richmond M. Pearson, chief justice of the state, that he, the 
governor, had no right to disobey the said writ, in which 


opinion the chief justice uses substantially the following lan- 
guage, that " he who runs may read :" 

" I declare my opinion to be that the privilege of the writ 
of habeas corpus has not been suspended by the action of his 
excellency. The governor has no power to disobey the 
writ of habeas corpus. The judiciary has power to declare 
the action of the executive as well as the acts of the general 
assembly, when in violation of the constitution, void and of 
no effect. Having conceded full faith, and credit to the action 
of his excellency within the scope of the power conferred on 
him, I feel assured he will in like manner give due observance 
to the law as announced by the judiciary.'''' 

Notwithstanding this plain, announcement of the law from 
the chief judicial officer of the state, the governor refused to 
obey the exigencies of the said writ. How could I be expected 
to vote not guilty upon these articles with this light before my 
eyes? Had I done so, I would justly have become a by-word 
of reproach among men. I shall never commit myself as 
being in favor of giving any man the right, under any circum- 
stances to violate this writ which is for the protection of the 
innocent. Yielding obedience to the writ of habeas corpus 
would not have had the effect of releasing the prisoners unless 
they were innocent. It is said that at the time the writs was 
served, the evidence against the prisoners could not be had. 
This only aggravates the offence of failure to obey the writ by 
arresting, in the first instance, without proper testimony. The 
light to be relieved from an unlawful detention, is a right dear 
to every true American citizen, and any one who, in this day 
of civilization and freedom would advocate contrary principles, 
must certainty meet with condemnation from all those who 
are true to the doctrines and teachings of our great government. 

The seventh article of impeachment charges the unlawfully 
recruiting a large body of troops from this state and from the 
state of Tennessee, and placing in command of them one Kirk 
and other desperadoes from the state of Tennessee, for hanging 
by the neck William Patton and others, tfce. 


The eighth article charges, in substance, " The inciting and 
procuring the state treasurer to disregard the injunction re- 
straining him from paying the sum of eighty thousand dollars 
or more out of the public treasury for the unlawful purpose of 
paying said unlawful troops. 

Upon these two articles I voted not guilty. Such points as 
I have not put down as a portion of the substance of these 
articles, I believe I have fully answered under the head of other 
articles, and do not deem it proper or necessary to mention 
them here again. I am satisfied from the testimony that there 
were many men in the " troops" raised by the governor, who 
were under twenty-one and above the age of forty-five years. 
I also believe that many of the men enlisted were from the state 
of Tennessee, and that the conduct of " Burgen" was in keep- 
ing with his character, which no honest man will attempt to 
uphold. Yet the governor avows in his answer to these charges 
that these men were citizens of the state, and that the conduct 
of his inferior officers was without his sanction or approval, and 
he offered to show that he attempted the arrest of Burgen for 
his crimes against the prisoners. I am disposed to give the gov- 
ernor the benefit of the doubt in my mind as to his guilty 
knowledge, first, as to the age and place of residence of the 
men enlisted, and second, as to his approval of the outrages per- 
petrated upon Patton and others. 

The act of the special session of 1S6S, entitled "An act to 
organize a militia of Xorth Carolina," section 21, appropriates 
the sum necessary to carry out its provisions. It is under this 
act the governor claims to have acted. There was no evidence 
satisfactory to my mind that the governor invited the public 
treasurer to disregard the writ of injunction. I believe that ! 
have given my reasons for voting as I did upon every im- 
portant point raised by the articles and answer. If I have 
overlooked any one it is not from a desire to evade it. It lias 
been now a week since the vote on the articles of impeachment 
was taken. I have reflected much upon the vote I gave and 
see no reason to wisli I had voted differently. If I have erred 


it is a fault of the head and not of the heart. From the first day 
of this trial to the last, I have endeavored to disrobe myself 
of all prejudice and act in accordance with my honest con- 
viction. " I have done so," and by this record I shall ever be 
willing to stand. 


I vote in the negative, because the impeachment law has only 
two branches: 1st, in regard to vice; 2d, crime. The former 
includes drunkenness only, the latter something more serious. 
The former cannot have intent; the latter has nothing else. 
Hence impeachment for the latter goes on the sole ground of 
"'irked motive, and thereon this whole case turns, as was ably 
shown by the respondent's counsel, and as is shown by common 

And hereon is based the entire charge, the like running 
through each article. 

So then, taking up the 1st article, the allegation beginning 
at the 12th line, li intending to stir up civil war and subvert 
personal and public liberty, and the constitution and laws ol 
said state and of the United Stales, and contriving and intend- 
ing to humiliate and degrade the said stale snd people thereof, 
and especially the people of the county of Alamance," is true 
neither from jyr oof nor reason. The me**e fact of proclaiming 
in insurrection under a law enjoining it, is not proof; and 
fixing upon a fourth rate county where no enmities moved to 
banningit, refutes the second ground, that of reasonableness. 
Had Orange county, for instance, been chosen, where one of 
the prisoners lived who is embraced in the third article, it 
might have been imagined probably personal feeling actuated. 
But not so. Orange was treated as other unproclaimed conn 
•ties, though no doubt infested with the organization. Article 
1, therefore, cannot be sustained. 


Article II. The same applies to this article, and the arretl 
of prominent men, if on grounds plausible to the governor, is 
no unusual tiling, as it has occurred in all ages and places, and 
though always regretted when discovered to be at the expense 
of innocence, yet will probably be more or less seen as long as 
criminal laws exist. I was arrested during the late rebellion 
on account of sentiment, yet no great stir was made about it 
either by myself or the government so doing, as such complain: 
would have been answered by saying that public exigency 
so required. Besides no civil means existed where! >y to com- 
plain, as the sacred hale-as, so-called, had then played out in 
North Carolina, as in 1870. 

Article III. I take this to be the strongest of the charges. 
Turner having lived in Orange, which, though as before inti- 
mated, very much disgraced by Kuklux, yet not falling un 
public rebuke. Hence, although he may have desired arrest 
as a good thing for him. and the respondent may have bel 
that the country would be benefited by such arrest, still 
proof appears of an advised arrest, and it merely occurred as 
an incident of the times. Had the arrest been desired • 
trary to law, his presence in Raleigh where his busi :ay, 

might have been made any day ; or, if as desirable as con- 
tended, Orange county might have been proclaimed insur- 
gent, including this party. This was not done. The 
was at a late day, and the inference is, leaving out proof, that 
no such arrest was directed. 

Article IV. This article is mainly a repetition ; and so in 
the 5th and 6th. The habees corpus is conditionally a v 
sacred thing, but when referable to one man, or a few men, it 
is less sacred than the rights of the entire people of a nati 
And, moreover, when its application is to a class embracing 
"gentlemen" instead of poor whites and colored men, it lo 
its sanctity altogether and becomes simply ludicrous. 11 
been taught that " all men are equal," and that the duty of 
the citizen now-a-days is to the general government in a 
paramount degree; therefore when by a "species of wild 


justice," poor, ignorant, and especially colored men, are terrified 
and abused, we may expect a mild display of national punish- 
ment. I would refer to sections 4 and 5 of the Bill of Rights, 
touching the sanctity of our oaths in behalf of Union. It 
follows that the governor should protect "life and property" 
in states, and if so doing by the whole force of the state, it 
would relieve the general government from aiding by more 
general declarations of war. General rebellions may then be 
prevented, and would only in this way, for so soon as thev 
get too strong for the state, they are strong enough for the 
Union, and it will be so in this country as long as it lasts ; 
unless treason be nipped in the bud, its full blossom must be 
crushed by blood and treasure; and all good men certainly 
pray for as little sacrifice as possible. 

Again ; military law stops civil law for the time so far as its 
operation on accusations arising out of the emergency itself is 
concerned. Insurgents cannot be turned over to insurgents 
for judgment from the very reason of the thing. If then they 
are held till the public safety allows, it serves right and proper. 
This is the answer of the impeached. 

Article 7. No doubt excesses were perpetrated by the sol- 
diery, or rather some of the commanders. It is to be regretted. 
It was very much so when Wheeler's cavalry and Sherman's 
bummers came along in 18G5, what one did not do the other 
finished, so said our citizens. It was never deemed advisable 
to meddle with them as it was all the result of war and con- 
fusion. So here, on a small scale, Burgen and others seemed 
to have conceived that old times were reviving and committed 
excesses. This the governor did not connive at, but rather 
opposed, and it was really true he would have punished for 
these outrages if permitted. 

As to the class of troops and commanders employed as it was 
argued for defence that the force raised was purely volunteer, 
and the strict rules of ordinary organizations did not obtain, so? 
as in the past, we have seen all sorts of men were used by state 
and section fix ages from fifteen to seventy-five, and often of no 


character at all. Volunteers for emergency will always consist 
of all sorts of men ; and as this military seemed to have been 
very effective, disclosing the Kuldux order and weakening it 
tor the present, we must in justice to the country at large not 
condemn too strongly. "Where a surgeon cuts off a le<r it is 
very had, but is really worse to have the patient die from gan- 
grene without it. 

Article VIII. As an incident, money had to be used. If 
so, no one man before a judge of his own party views could 
be expected to stop the movement in favor of all the peqpli , 
for if so, nothing could ever be done unless by universal 
consent, and at this day of the nation this is not to be ex- 

I would say in concluding, that though errors of the head 
may have been committed, I cannot see any of the heart 
wherein all guilt lies. The governor has been blamed for not 
calling out the troops sooner ; but his forbearance seems to 
have overruled him. But. as his action, though late, has 
served to unearth the klan and prepare the government for 
self -protection , I cannot convict. My cath honestly taken to 
the union ; my view of the comparative sacredness of hcibi as 
corpus / the persuasion that the nation, including north and 
south, may use this item of history to advantage in avoiding 
the danger and providing therefor, I feel proud of a consis- 
tency beginning with my first oath to the United States in 
1839, again in 18G5, and now in 1871, in the capitol of my 
native state. Being both religiously and civilly inclined to 
obey the solemnity of an oath, wherever truth and real 
takes her stand, my feet shall also be found. I have therefore 
pronounced the words not guilty with unfaltering tongue. 


Mr. Chief Justice and Senatobs: Being called npon t<> 
discharge one of the most important and responsible duties of 


my life, a duty the proper and conscientious discharge of 
which affects not only myself, my immediate constituents and 
the whole state of North Carolina, but also the character and 
reputation of the chief magistrate of the state, I feel it to be 
my solemn and bounden duty to enter of record the reasons 
which impels me to give the vote which I am about to cast upon 
the guilt or innocence of the respondent on the first and second 
charges preferred against him in the articles of impeachment. 
I have endeavored, Mr. Chief Justice and Senators, through- 
out the whole of this protracted trial, to give a patient and 
careful hearing and consideration to all the facts which have 
been elicited in the investigation ; I have listened with atten- 
tion and with great pleasure to the able arguments of the 
learned counsel, both in behalf of the prosecution and of the 
defence; I have endeavored to divest myself of all prejudice 
and bias as far as it was possible for poor weak mortal man to 
do. I fear, however, that when I entered this jury box as one 
of the triers of this case, I was not as free from prejudice 
against the accused as I should have been and as I desired to 
be. The many reports, exparte as they doubtless were, which 
came to my ears through the public press before the meeting 
of this general asscmbl}', and which, without intermission, have 
been industriously circulated almost up to the present hour, were 
well calculated to warp the judgment and bias the minds of 
jurors who belong to the political party of which those papers 
were the accredited organs. I fear, therefore, that I did net 
enter upon this investigation as free from prejudice as I should 
have been, but, Mr. Chief Justice and senators, when I took 
a solemn oath in this august presence to make a true deliver- 
ance between the state and the accused, I determined, God 
being my helper, to render a true and impartial verdict; I 
determined to forget, as far as possible, what I had heard from 
every other source, and look only to the sworn testimony of 
witnesses produced before this high court. The witnesses have 
been heard, and my mind has been convinced beyond the 
shadow of a doubt, that during the period intervening between 


the autumn of 1868 and the summer ot 1870, the civil law was 
not adequate to the protection of life, liberty and property in 
the counties of Alamance and Caswell. "Without coin": into 
the evidence in detail, it is sufficient to say that the sheriff of 
Alamance county, whose sworn duty it was to preserve the 
peace and bring the violators of law to justice, was, according 
to his own evidence, a member of a secret association who had 
banded themselves together, and under the solemn sanction of 
an oath not to betray one another, had taken the lav/ into their 
own hands and had whipped, scourged, maltreated and mur- 
dered citizens of the county and destroyed their property and 
caused them to abandon their homes, lor no other reason than 
that they had incurred the displeasure of this marauding mid- 
night band of disguised assassins. It also appears from the 
evidence that justices of the peace and other peace officers in 
Alamance county, were also of this organized band; and it is 
in proof that there were upwards of sixty cases of muni' r . 
whippings, scourgings and forcible trespass, &c, &c, commit- 
ted in this county, and not a single case of trial or punishment 
by the courts of law except, perhaps, a single instance in which 
some colored men were the offenders. This state of thii 
was intolerable. It had brought disgrace upon the fair name 
ot North Carolina, and was doing an injury which it would 
recpuire years to repair. Public sentiment in Alamance and 
Caswell seemed not to discourage this state of affair.- and the 
infection seems to have been extending into other and adj< 
ing counties. Civil law was inadequate to remedy tlie evil, and 
it became absolutely necessary to resort to other means to stay 
the tide of destruction or to give up the disaffected district to 
the tender mercies of a heartless band of disguised midnight 
executioners. The alternative was chosen ; the military for 
of the country was called into requisition by the governor to 
suppress violence, to protect life and to save property, and for 
doing this he is impeached, and I am called Upon to p 
between him and his accusers, and for my verdict and apon my 
oath I do say, " he is not guilty of the first and sec >nd cliarg 



In order to avoid the charge of remissness, or indifference to 
public opinion, and forestall any insinuation that may arise in 
after years, that I voted on the great questions recently before 
the senate of North Carolina, involving the removal and deerra- 
dation of the late governor, W. W. Holden, without due con- 
sideration, 1 avail myself of a senator's right to leave upon 
record, a reason or more, for my several votes as cast on the 
several " articles of impeachment," in the senate chamber on 
the 22d day of March, A. D. 1871. Brevity being a part of 
my nature, I shall endeavor to discharge the task of showing- 
how I happened to vote the "strait ticket," and how I arrived 
at my conclusions, as the guilt of the respondent, by detailing 
the following illustration : 

A certain minister m sacred things, very properly deter- 
mined to induce each head of the several families in his pastoral 
charge, to establish the " family altar." By continual effort, 
in a Jew weeks, he had well nigh succeeded in this laudable un- 
dertaking. Among his many parishianers, there remained one, 
only one, obstinate, unruly and immovable. Many were his 
excuses. It was inconvenient to assemble the seveml members 
of his household at every given hour. Their avocations were 
diverse, their engagements varied, and their hours of retiring 
necessarily very different. Besides, he was not educated — had 
a lack of language — was "slow of speech" — could not cull 
words and join them together, giving utterance to feelings of 
devotion — in fine he could not pray — could not "take up the 
cross." But the good padre knew no such word as fail. One 
by one he silenced the objections of this caviller — this 
wordly-minded member of his flock. One only remained — 
the lack of language — the want of ability to frame a prayer. 
But the family altar must be erected. The pastor was not to 
be outdone, and he prepared to put words into the mouth of 
obstinate. He prepared to write a prayer, which this Aaron 


should memorize, and in humble attitude repeat in the family 
circle every morning. This proposition was accepted, a com- 
promise effected, a truce entered into, and the contest ended. 

The prayer was written, brief, pointed, and the pastor went 
to his cloister, with a victorious tread, feeling that he had tri- 
umphantly wielded "the sword of the spirit," and had subdued 
the last resistant in his tlock. 

Obstinate, however, determined to evade the letter, and ob- 
serve what he regarded as the spirit of the compromise. Be- 
ing a great economist in point of time, he decided the following 
compliance with the terms of capitulation. Pasting the written 
prayer on a bit ot bristol board, he tied the same to the post, at 
the foot of his bed, and at his hour for retiring, having called in 
the family, he would as he passed to his couch, reverently point 
to the prayer and exclaim, 

" Oh Lord ! them's my sentiments." 

The application : 

When the " articles of impeachment " were presented in the 
senate, I listened to their reading attentively. After the "ar- 
ticles " were printed, I read them repeatedly with much care. 
I received and read respondent's " answer " in like manner. I 
then listened for six weeks, without missing a roll call, to evi- 
dence and arguments pro and con, of managers and their coun- 
sel, and of respondent's counsel. Much of this I read and 
re-read, from time to time, after it was printed. "When all was 
over, I mentally laid the " articles," and the evidence and 
argument offered in their support, on one hand, and the " an- 
swer," evidence and arguments offered^/ 1 contra, on the other, 
and in reviewing the whole, my finger involuntarily pointed 
to the "articles of impeachment," and I as involuntarily ex- 

" Oh Chief Justice ! them's my sentiments." 



This is a case of great interest and importance, not only 
because it is the first instance in American history where 
the governor of a state has been impeached, but because it- 
involves questions touching some of the fundamental prin- 
ciples of American law and liberty. The respondent stands 
charged, not merely with technical and petty violations of law, 
but with wilfully trampling under foot the most essential safe- 
guards of individual right and public freedom. Among the 
allegations against him are these : 

That he recruited and set on foot a large body of troops, 
such as he was not permitted to raise or to command, either by 
the constitution of the state or of the United States, they not 
being citizen-militia of North Carolina, but very many of 
them, including their chief officers, being mercenaries of a 
desperate character, hired from abroad, and many others of them 
being minors, extremely unfit to be conservators of public or- 
der, and perhaps for that reason, forbidden by the constitution 
of this state, from being enrolled among the militia ; 

That having thus organized a force not at all fitted to secure 
order and uphold the law, but admirably suited to be willing 
tools for the furtherance of his own designs, he unlawfully used 
large amounts of the public money for the support and main- 
tenance of this unlawful military force ; 

That, by means of this force, he, without any warrant or au- 
thority of law, caused to be arrested, detained, and imprisoned, 
about one hundred peaceable citizens, against whom no charge 
of crime existed, and as to most of whom no evidence was pro- 
duced by him upon which to found even a suspicion ; 

That some of these arrested men were threatened and tor- 
tured by his military agents, to extort from them confessions, 
and though this was made known to him he took no effective 
steps to prevent its repetition ; 

That he sought to raise the military above the civil authority ; 


That lie persuaded and induced the paymaster of his troops 
to disobey an order of injunction, properly issued by a judge of 
the superior court, restraining said paymaster from disbursing 
the public moneys in his hands, on account of said troops, and 
having thus caused said moneys to be placed in the hands of a 
new appointee of his own, he procured the disbursement of the 
same to his troops, in evasion and contempt of the rightful au- 
thority of the judiciary ; 

That he refused to obey, and commanded and caused his 
military subordinates to refuse to obey writs of habeas corpus 
issued by the chief justice of the supreme court of North Car- 
olina, on behalf of the citizens arrested and detained by him 
and his agents, and continued to hold said citizens in custody, 
and some of them in loathsome prisons, for many weeks after 
the service of said writs upon him and in defiance of the man- 
date thereof, he having ordered his military officers to resist 
with force, if necessary, any attempt on the part of the officers 
of the civil law to execute the said writs of habeas corpus. 

The foregoing, I understand, from a careful study of the 
articles of impeachment, to be among the most flagrant acts 
of wrong and usurpation therein charged against the respon- 
dent. They are not arranged according to the order in which 
they are presented by the articles; but they constitute, I think, 
a lair summary of the principal allegations. 

Certainly these are no light charges. Condensed into one 
sentence, they simply mean that the respondent lawlessly seized 
the sword and public purse, trampled down civil authority, 
overthrew the sacred muniments of liberty, and made himself 
a military dictator. Extraordinary as it is that such daring 
strides towards absolute and irresponsible power should have 
been attempted in one of our free North American states, and 
especially in one whose traditional love of liberty and jealousy 
of usurpation arc so well known, the evidence produced before 
the senate has satisfied me of the fact beyond a reasonable 

To come directly to the charges in the order and form in 


which they are set forth in the several articles, I have settled 
down upon the conclusion that an article in a case of impeach- 
ment is properly to be regarded in the light of a charge with 
specifications ; and if any of the several distinct and separate 
specifications of official misconduct contained in an article is 
sustained, and is sufficient in its character to make good the 
charge of high crime or high misdemeanor in such article, 
then an officer impeached must be found guilty on such article, 
though some of the specifications be not sustained ; this prin- 
ciple to be applicable even where the specifications are not for- 
mally, but only substantially distinguished from one another, 
provided they are really distinct allegations and not so coupled 
and interwoven together that they cannot be considered as 
separate propositions. 

This principle I have thought proper to lay down here, be- 
cause upon it is based in some measure, my vote against the 
respondent upon the first two articles, which, except that they 
relate to acts done towards two different counties, are similar 
in form and substance. 

Article I. charges a high crime, in this: 

1. That the respondent, on the 7th of March, 1870, falsely 
and illegally declared Alamance county to be in insurrection. 

2. That afterwards he sent unlawfully organized troops, of a 
desperate and lawless character, into that county, occupied it 
by said military force, and suspended the civil authority and 
the constitution and laws. 

3. That he caused to be arrested, by said troops, eighty- 
two peaceable citizens of said county engaged in their lawful 

4. That he permitted his military agents to injure and mal- 
treat sundry of the persons thus arrested : 

It being alleged that he did all this from corrupt and wicked 
motives and with evil intent. 

If there were no other specification of crime in this article 
except the bare fact of the proclamation of insurrection, 
although I am well satisfied that there existed no semblance of 


any actual insurrection there, I should vote to acquit the res- 
pondent upon tills article ; because b} T the letter of the Shoffner 
act (so-called) the governor was authorized to do that, in a cer- 
tain contingency of which he was to be sole judge, and I could 
not hold him bound to decide upon the constitutionality of an 
act ot assembly ; though, as this act was only to be enforced 
according to his discretion, it would have been wise in him 
not to have proceeded under it, as he would have been bound 
to proceed by a 'mandatory act, whatever might be his private 
opinion of its constitutionality. 

But the Shoffner act evidently contemplated, in allowing 
insurrection to be proclaimed and militia to be used, not the 
overthrow or suspension, but the upholding and strengthening 
of civil authority in the disorderly county, and the term " insur- 
rection " was used in the act to indicate a condition of disorder 
bv no means amounting to insurrection in fact This is shown 
by its provision respecting civil trials of offenders, the removal 
of trials upon the mere motion of the solicitor or the judge 
himself, and concerning costs. Evidently the civil tribunals 
alone were to have jurisdiction to try criminals, and the mili- 
tary were only to be used to assist in the apprehension of per- 
sons against whom proper civil process was issued, or persons 
found in the act of committing crime, protect the courts, if 
necessary, in the exercise of their functions, and afford security 
to those who might wish to bring complaints against offenders 
chargeable with outrages against person or property. This 
was the real purport of that act ; and those who opposed its 
enactment, while they were right in doing so on account of 
several bad provisions in it, might not hare contended so 
vigorously against it, had they not foreseen clearly that it 
would be used, as it has been, as a ptetext tor doing what the 
act itself did not warrant. 

Upon the last three specifications in this article, and the 
proofs adduced, I cannot avoid deciding against the respon- 
dent. His troops were of an unlawful character ; lie had no 
right to arrest citizens not found in the commission of crime, 




without a civil warrant issued upon affidavit ; and he had no 
right to permit their personal maltreatment in custody. 
Moreover, the evidence shows how completely he regarded 
the civil law set aside by his action, in that he appointed a 
military commission to try the arrested citizens — a step which 
he was apparently bent on carrying out,, had not the result 
of the elections startled him, and an upright and fearless 
federal judge interfered and loosed the victims from the 


Upon the question of the evil intent of the respondent, I 
•an have no doubt. A great mass of testimony is before us 
touching the matter of outrages secretly committed against 
son and property in Alamance, by persons in disguise. 
Passing by what may be due to exaggeration, there remains 
ugh to bring a blush of shame to the cheek of every true 
| thoughtful son of North Carolina. I wish here, as often 
I have done elsewhere, to pronounce my unqualified con- 
demnation of these reckless and wicked deeds. It is no justi- 
ttion of them that they were usually perpetrated upon 
ictors and incendiaries. But I am gratified to find, 
from the evidence, that they have long since ceased. Indeed, 
they are shown to have ended before the respondent sent his 
into Alamance. The respondent has also entirely 
failed to provte, by any credible testimony, that any forcible 
tance wrs made to the constituted authorities, or that 
bodv contemplated an attempt to subvert or overthrow 
the existing Btate or federal government. 

I: ie urged that the respondent, in all he did, was actuated 
olely by the good purpose to protect the poor and humble 
from outrage. After carefully weighing the evidence, includ- 
inir his numerous proclamations and his whole course of action 
in the premises. I am forced into the belief that the respondent 
and his aiders and abettors, in this state and out of it, were 
-tudious, not so much to repress the alleged outrages, as to Util- 
ize them for purposes ot political thrift. What am I to think 
of hia motives, when the proof before us tends so strongly to 


show that the respondent loved rather to make political capital 
by publishing to the world complaints of the wrongs of his de- 
voted friends — the poor colored men — than to stop those wrongs 
by sincere efforts to that end ? A proclamation of insurrection 
issued at the beginning of March, and followed up by nothing 
further till the end of June, and then followed up by bring- 
ing into the field such troops, commanded by such officer?. 
governed by such orders, and used in such manner; — just upon 
the eve of a general election, though the outrages were mostly 
long past, and not alleged to have been very noticeable just 
then, and are really proven here to have ceased entirely ; — what 
does all this show, but that the respondent was moved by polit- 
ical motives and a desire to influence the pending elections, and 
not by the high and pure purposes claimed for him here. In 
consideration of all these things, I vote the respondent "guilty" 
on this article. 

Article II charges a high crime, with similar specification? 
to those of the preceding article, except that the proclamation 
of insurrection bears date July 8th, 1870, and relates to Cas- 
well county ; and nineteen citizens of said county are alleged to 
have been arrested, detained, imprisoned and maltreated. 

Very few instances of crime are proven to have occurred in 
that county. One or two murders had been perpetrated, but 
they were and are still enshrouded in mystery. There seems 
to have been no ground whatever for proclaiming insurrection 
there. Upon the other specifications in this article and the 
evidence offered in support of them, my conclusions are simi- 
lar to those I have come to upon the same specifications in the 
first article ; and I vote the respondent " guilty " upon the se- 
cond article. 

Article III charges a high misdemeanor — in this : 

That the respondent caused the unlawful arrest of Josiah 
Turner, of Orange county, and his detention for many days, 
accompanied by imprisonment and maltreatment. 

Though the respondent denies ordering this arrest originally, 
the evidence strongly tends to show that he did so ; and the 


foot of his ordering the detention and imprisonment of Mr. 
Turner, which is admitted must be held to make him a parti- 
cipant in the original wrongful act of his agents, even if he had 
not ordered it; besides that, upon general principles, he is 
responsible for all wrongful acts of his unlawful agents. I 
accordingly vote the respondent guilty upon this article. 

Article IV charges a high misdemeanor in this: That the 
respondent caused the arrest, detention and imprisonment, un- 
lawfully and without cause, of several citizens of Caswell 
county, John Kerr, S. P. Hill, W. B. Bowe and 1ST. M. Roane, 
treating them with much contumely and violence. The proofs 
are conclusive, and I vote the respondent " guilty " upon this 

Article V charges high crimes and misdemeanors, with many 

icifications, of which the principal ones, not laid down so 
directly in the preceding articles are, that the respondent 
attempted to subject the civil authority in Alamance to the au- 
thority of the military, treated the wric of. habeas corpus as 
practically Buspended by his own action, and refused obedience, 
and caused his subordinates to refuse obedience to this writ 
when issued by the chief justice upon the petition of A. G. 
Moore, of Alamance, arrested and detained by respondent's 
order. The evidence fully and conclusively sustains all these 
-rave allegations. The constitution of North Carolina declares 
that the privilege of the writ of habeas corpus shall never be 

pended. Hut it is useless to multiply words upon this 
point. Without this grandest of all its safeguards, liberty 
would be but an idle and meaningless name. And the attempt 
to inaugurate military rule in place of the civil power could 
only be tolerated by a people educated to endure the yoke of 
tyrants. I vote the respondent "guilty" upon this article. 

Article VI charges high crimes and misdemeanors, and is in 
all particulars similar to the preceding, except in specifying 
that the wrong was done in Caswell countv, and to certain citi- 
/.i mis thereof, and it is sustained by the evidence. I vote the 
respondent "guitty" upon this article. 


Article VII charges a high misdemeanor in this : That the 
respondent unlawfully drew from the treasury large sums of 
money and used the same in maintaining his unlawful military 
force. The evidence is direct and conclusive. I vote the 
respondent " guilty " upon this article. 

Article VIII charges a high misdemeanor in this : That the 
respondent incited and induced the paymaster of his troops to 
evade and disobey a writ of injunction, lawfully issued by 
Judge Mitchell of the superior court, restraining said paymaster 
from paying out the public moneys in his hands, on account of 
said troops ; and having thus procured said moneys to be turned 
over to a new appointee of his own, he caused them to be dis- 
bursed in evasion and contempt of said order of injunction. 
The evidence sustains the charge, and I vote the respondent 
"guilty" upon this article. 

Such is the verdict I have felt compelled to render in this 
case. The proofs of the gravest official misconduct, on the 
part of the respondent, are overwhelming. It is a matter of 
unaffected regret with me that such a decision should have been 
pronounced against a man possessing amiable traits of private 
character, and towards whom I cherish no feelings of person;',! 
enmity. Loving party success more than his country's welfare, 
has proved his ruin. Nor is he himself less guilty from the 
fact that he probably perpetrated his wrongful acts at the in- 
stigation of wicked advisers, ready now to desert the man tliev 
counselled to his destruction. It is, moreover, an evil omen 
that the respondent committed these daring deeds of usurpa- 
tion, not only without any apparent fear of interference by the 
partizans at the head of the federal government, but with the 
confident expectation of being sustained by them. All this 
but makes our duty the more imperative to record a judgment 
in this case which shall stand as a solemn landmark in history, 
to warn all our rulers against plotting to deprive us of those 
venerable heir-looms ot liberty and popular rights which have 
descended to us from an honored ancestry, and which will, 1 
trust, be cherished and preserved by the people* »f North Card 


lina, till Ilatteras shall cease to battle with the waves and the 
granite sentinels of the Alleghany be driven from their stations. 


The articles of impeachment preferred against "W. W. 
Holden, governor of North Carolina, are eight (8) in number, 
Qore or less dependant one on the other. 

It appears from the evidence that the general assembly of 
1809 and 1S70, passed an act, known as the Shoffner act, au- 
thorizing the governor, at his discretion, to declare a county 
or counties in a state of insurrection, and to call out volunteer 
militia for the purpose of restoring law and order in such 
counties, and for the purpose of bringing tho violators of law 
1o justice. It further appears that in the counties of Ala- 
. nance and Caswell, sundry crimes had been committed, 
amongst which were murders. In both said counties, over 
forty colored persons, and more than twenty white persons 
bad been whipped or otherwise ill treated; that it was im- 
possible to execute the civil law ; that in several instances 
the officers charged with the execution of the law were mem- 
bers of ;i secret, oath-bound organization which met in Hie 
woods during the night time, and there passed orders to 
whip, scourge, and, in some instances, to murder such citizens 
of the state as had incurred their displeasure, or were charged 
with some offence by a member of this murderous and treasona- 
ble organization. 

It further app< ars from the evidence of persons at one time 
members of this secrel organization, that each member was 
sworn to keep secrel the proceedings of the "klan," and to 
aid each other in all their wicked and lawless acts; that it 
was required of every member of this organization to testify 
falsely in court in order to acquit a brother member, and to 
use all means to get on the jury in order to aid a member to 


escape the penalty of the law. These facts were testified to 
by members of this organization. 

The governor was not allowed to prove the existence of 
this organization in other counties than the counties of Ala- 
mance and Caswell, or that outrages and murders had been 
committed by this organization in other counties of the state, 
and that members of the organization in other counties had 
testified to the fact that it was required either by the oath or 
explanation of the secret work of this " klan " that members 
should swear falsely to acquit each other in court, and to 
render false verdicts, if necessary, as jurors to enable a brother 
member to escape the penalty of the law. 

It further appears in evidence, that the membership of this 
organization consisted exclusively of persons belonging to the 
democratic or conservative party, who perpetrated these out- 
rages almost entirely on members of the other political party, 
clearly establishing the principle that no freedom of speech, or 
freedom of ballot was tolerated, or freemen permitted to think 
and act according to the dictates of their own consciences. In 
addition to this it appears that these facts were made known to 
the governor by citizens from every portion of the state, that 
outrage upon outrage was committed in the dead hour of the 
night, upon men, women and children. In many instances 
most brutal whippings were administered upon the bare backs 
cf both white and colored persons ; that in several cases persons 
were taken from their families by disguised men in the dark- 
ness of night, and nut even allowed to give their wives and 
little ones a last farewell, the next day their budies were found 
hanging to a tree, and in one instance near the court house in 
the town of Graham, in the county of Alamance ; in another 
instance a colored man who was proven to be occasionally 
insane, was taken from his house and family in the night, and 
his body was found some weeks afterwards in a mill pond with 
a rock tied to it. 

In another instance, a state senator was murdered in the 
court house at Yanceyville during the sitting of a public meet- 


ing in the day time : it further appears that no person has ever 
been punished by the civil authorities for any of said offences. 

In view of all these facts which was made known to the 
governor, and in view of the appeals made to him for protec- 
tion of lite and property, under the act known as the Shoff- 
nor act, passed to meet such a state of affairs, there is no reason 
to believe that the governor acted upon bad, corrupt, or im- 
proper motives. 

Article 3d. — arrest of Josiah Turner, jr., of the county of 
Orange. Upon this charge there is no direct evidence that the 
governor ordered the arrest of " Turner." It appears in evi- 
dence that " Turner" used every means to incite the respon- 
dent to arrest him, and that for this arrest, if illegal, the respon- 
dent is liable in a civil action. This charge partakes more oi a 
private than a public offence, and as the law does not mention 
what offences are impeachable, I am of the opinion that im- 
peachment lor an offence of this kind was not contemplated by 
the law. 

Article 4th. This charge appears to l>e the same as charged 
in article 1st and 2d, except that it alleges the arrest and de- 
tention of sundry persons. It appears that the governor was 
authorized to arrest persons in counties declared in insurrection 

Article 5th. This article, the same principal is involved, as 
Id articles 1, 2 and 4, with the additional charge " that the gov- 
ernor failed to surrender the parties arrested, in pursuance to 
writs of habeas corpus issued by the chief justice, until some- 
time after the demand was made, and the writs served." 

I poii this charge many authorities were read, showing that 

parties could be held until after a regular term of a court. It 

19 dear that parties arrested could only be tried by the civil 

courts; at what time, whether immediately, or at such time as 

il'i ty of the state required ? There are conflicting opinions 

entertained by the legal profession, and in view of the fact that 

arned judge of the United States court has recently decided 

I an arrest by the military was another mode of arrest, and 

lid be legally made, and the parties held for trial by the mil- 


itary, I am of the opinion that the respondent is entitled to 
the benefit of the doubt ; and further, that in my opinion he 
acted in good faith from good motives, and that if he was in 
error that it was an error of judgment, and not from wicked 
and corrupt motives, and that he could have had no motive to 
oppress and otherwise ill-treat good citizens of the state. 

Article Gth contains the same charges as article 5th — refers 
to failing to surrender the prisoners arrested in the county of 
Caswell. Same reason given for acquittal, as in article 5th. 

Article 7th contains the same charges as the 1st and 2d 
articles, with the addition that said Win. "W". Ilolden made 
drafts on the treasurer of the state for large sums of money to 
pay off the militia organized under the act known as the Shoff- 
ner act. Same reasons for his acquittal as is given in other 
articles ; and that he was authorized to draw on the treasurer. 
Said act of the general assembly was admitted in evidence, and 
that there is no reason to believe that he acted wickedly or 
corruptly, and unless he did so act from corrupt, evil, and bad 
motives, he is not liable to impeachment even if said act known 
as the Shoftner act is unconstitutional. 

Article 8th charges, as in No. 7, that said "Win. W. Ilolden, 
governor, did draw large sums of money from the treasury for 
the purpose of supporting said military force, and that said Win. 
W. Ilolden, governor, did cause A. D. Jenkins, paymaster, to 
turn over the funds in his hands to another agent of the governor 
for the purpose of defeating an injunction issued by his honor 
Judge Mitchell, one of the judges of the superior court. 

It does not appear that any injunction was served on the 
governor, or that the governor refused to obey any injunction 
or order of the iudge. 

If he had been guilty, I take it for granted that the judge 
would have taken action against him for contempt. 

I am therefore of the opinion that this charge is not sus- 
tained, and that there is nothing in the additional charge in 
regard to the injunction that makes the respondent guilty. 

In conclusion, I must say that the respondent acted in the 


matter of callinir out the volunteer militia under extraordinary 
circumstances; that not only the writ of " habeas corpus " was 

suspended by this oath bound secret organization, but all civil 
law was powerless to protect the life and property ot the cit- 
izens ; that many of the outrages committed were of the most 
revolting character, both contrary to Christianity and civiliza- 
tion ; that this secret insurrection was more dangerous and for- 
midable than open insurrection or rebellion ; that the tact that 
they wore hideous disguises and were bound together by horrid 
oathe to keep secret the outrages committed, and to commit 
perjury, both as witnesses and jurors, to relieve from the 
penalty of the law any of the members of this organization ; 
all tending to prove that some extraordinary measures were 
required to put down this organization of disguised murderers 
and assassins, and the fact that civil officers who did not belong 
• or ( ncourage this organization were afraid to discharge their 
duty, and that the persons who were whipped or scourged by 
perate and wicked men, did not dare to appear and 
testily even when they knew the parties, believing from what 
lias occurred in different portions of the state, and by the evi- 
dence of members of the klan, which was offered by the respon- 
dent's counsel and decided to be competent evidence by the 
chief justice, (but was ruled out by a vote of the senate.) Upon 
h full and fair examination of all the evidence and articles of 
impeachment, and arguments of the learned counsel, I am of 
the opinion that the accused should he acquitted upon all the 
cha ■ . od raor dally upon the grounds that if he com- 

mitted error, it was not from bad, corrupt, or wicked motives, 
but from mistaken judgment under most extraordinary cir- 
( '" :; 8. To justify the conviction of the governor, there 

• allegations oi some crime or misdemeanor 
involvi iral turpitude, gross misconduct, or a wilful viola- 

tion ,,f law, and tli.' proof must be such as to satisfy the con- 
cience of the truth of the charge. 
J have therefore Noted not guilty on each and every charge. 




Tho importance of the issue that the senate as a court of 
impeachment is called upon to decide, no one can doubt. The 
result all must feel. For it behooves each senator to decide 
between the people of North Carolina, as heard through their 
representatives, and the chief executive of that people. I have 
therefore thought fit, in justice to myself, to those who have 
honored me with their confidence and placed in my hands the 
scales of justice, to take advantage of the opportunity afforded 
in thus filing my opinion. 

In the first place, I look upon this body, not simply as a 
court, governed by the same strict rules of evidence, confined 
to the same narrow channels as an ordinary court of law, but 
differing in so much that senators must decide alike the law 
and the facts, augmented with great discretionary power, more 
nearly allied to what is known to the system of jurisprudence 
as the courts of equity, where the rigid rule of law is set aside 
that the appeals of humanity may be heard, the demands of 
fnstice satisfied. Further, there having existed a confidence be- 
tween the accuser and the accused, a presumption arises that 
no intentional injury would be done either by the one party or 
the other; but as injury is ofttimes the result of the best mo- 
tives, the intent is to be carefully considered, and this is the 
province of this court, for it is considered capable of giving 
proper credence to all questions of fact, and drawing the nice 
distinctions between testimony and evidence, in consequence of 
which I favored the admission of all testimony having a ten- 
dency to throw light upon either the subject matter or the in- 
tent, for according to the rules laid down by learned Writers, 
the exclusive principle ceases, and in the language of the law, 
i/ite ratione cesat lex. Again the respondent does not occupy 
the position of an ordinary criminal. It is a well settled prin- 
ciple of law, that intent is the essence of all crime, and that 
every violation of law is prima facie evidence of intent, thus 


throwing the enus probandi, or burden of proof, upon the 
accused. To this there are, however, three expressed exceptions, 
to-wit, infants, idiots and insane persons, who from want of 
reason, can have no intent. There is, however, one other ex- 
ception, not springing from the same cause, hut arising from the 
wisdom and foresighted policy of the law. It is the case of an 
executive officer, whose acts are always supposed to be prompted 
by the best motives until the contrary is shown. I shall not 
speak of the expediency of this except as upon reflection it 
must force itself upon every one. However, it may here be 
well to observe that no executive is to be held amenable for the 
execution of a law whether it be mandatory or permissive, and 
should an executive fail or refuse to execute a law on the 
grounds that it is unconstitutional, he does so at his own peril ; 
for if an executive might at his own option execute the law, it 
would combine within (me of the co-ordinate branches ot gov- 
ernment the executive and judicial functions, which is so danger- 
ous to republics that the best and wisest statesmen have uni- 
versally agreed that they ought to remain forever separate and 
distinct. There is one other reason which I will state why an 
executive should carry into effect the enactments of the legisla- 
ture, for as each member is sworn to support the constitution, 
they are supposed to pass no law, which after mature delibera- 
tion they did nol consider constitutional. Hence, I have fa- 
vored the exclusion of such matter only as in my opinion 
would encumber rather than aid, tend to obscure rather than 
make clear. 

I DOW ciinie to the consideration of the eight articles of im- 
peachment, and that I may be the more brief, shall confine my- 
self to the following classifications : 

Articles first, second and fourth, may be considered as con- 
tained in the first, under the following heads: 

l.-l. It is alleged that t lie respondent declared the counties 
of Alamance and Caswell to be in a state of insurrection, no in- 
surrection existing. 

2d. That the respondent raised, armed and equipped, large 


bodies of lawless and desperate men, and sent them to Ala- 
mance and Caswell without authority of law. 

3d. That the respondent, in said counties, caused to be ar- 
rested, detained, imprisoned and otherwise maltreated good and 
lawful citizens contrary to the law of the land. 

Article third alleges that the respondent caused to be arrested 
Josiah Turner, junior, in the county of Orange, without due 
process of law. 

Articles fifth and sixth allege, 

1st. That the respondent caused to be arrested and detained 
certain good and lawful citizens of Alamance and Caswell with- 
out authority of law. 

2d. That the parties so arrested and detained, applied to 
the chief justice for a writ of habeas corpus, which was granted, 
and that the respondent, through George W. Kirk, refused to 
obey the writ and make return thereto. 

3d, That upon proof that the commands of the writ had 
been disregarded, and the avowal of the respondent that the 
same was done by his order, the chief justice adjudged and de- 
clared that the writ of habeas corpus was not suspended, and 
caused a writ to issue demanding the body of the persons 
named in the said writ, directing the marshal of the court to 
serve the same upon the respondent, together with a copy of 
his opinion ; that the respondent still refused ; thus by means 
of an armed force, suspended the privileges of the writ. 

Article seventh alleges that the respondent made warrants 
upon the treasury for large sums of money without authority 
of law. 

Article eighth alleges that the respondent caused A. D. 
Jenkins to violate the writ of injunction for unlawful purposes. 
All of which is alleged to have been done with evil intent and 
for the purpose of subverting the civil law, and with a total 
disregard for the constitution, which has for its leading object 
to obtain for the government means of coercion without resort 
to force. 

It now remains, in the first place, to enquire, did the respon- 


dent declare the counties of Alamance and Caswell in a state 
of insurection ? This is admitted. Did an insurrection exist 
in said counties ? I shall not decide the question of what is 
an insurrection, nor consider it in its technical sense, but refer 
at once to the language of the statute under which the 
respondent claims to have acted. Chapter 27th, section 
1st, laws ot lSG9-'70, reads as follows: "That the gov- 
ernor is hereby authorized and empowered, whenever in his 
judgment, the civil authorities in any county are unable 
to protect its citizens in the enjoyment of life and pro- 
perty, to declare such county to be in a state of insur- 
rection." Thus we find the governor clothed with full 
power to declare, at his own option, any county to be in a state 
ot insurrection. Then did the respondent wilfully abuse the 
power conferred ? The facts as set forth disclose that both life 
and property were unsafe, and that it was beyond the power 
of the civil law to bring the offenders to justice, establishing 
an insurrection within the purview of the statute. In the next 
place, did the respondent raise, arm and equip large bodies of 
men and send them to Alamance and Caswell ? This is ad- 
mitted. Were they lawless and desperate? They seem, 
with few exceptions, to have obeyed orders, which is consid- 
ered, in military, the first requisite of a soldier. Were they 
raised and sent to Alamance and Caswell without authority of 
law \ The act above referred to empowers the governor to 
call out the militia to aid in the suppression of the insurrec- 
tion. Was this militia? Chap. 22, laws ot the special ses- 
sion of 1868, entitled, "An act to organize a militia of North 
Carolina," provides for a militia, a volunteer militia and a de- 
tailed militia; for the detailed militia, certain qualifications are 
required that are not prescribed for volunteers — age, resi- 
dence, and that each member must be a qualified elector of the 
state ; none of which requisites are mentioned in the 8th sec- 
tion, authorizing volunteers; and the reason a good one, that 
while the governor may accept the services of persons under 
or over the ages required, he cannot compel the same to serve. 


As to what name the volunteer regiments were called by, even 
did the statute express the maxim, de minimus noa curat lex, 
might well apply. Thus I am of opinion that the farce was 
legal ; if not, the language of the statute is such that, without 
evil intent, it might be so construed. Lastly, under the first 
head, I come to consider the right to arrest, detain and maltreat. 
'Tis here we call into service that faculty which makes the 
theory of law so beautiful, and well calculated to maintain right 
and suppress wrong, — this close discrimination, the balance 
pivot on which rests the scales of justice. "What power had 
the respondent a right to exercise over the insurrectionary 
counties — for no one will deny he had a right so to declare 
them under the law? — power to arrest and detain all insur- 
gents in an ordinary insurrection, those who are found in open 
arms against the authorities ; but in Alamance and Caswell, no 
one being in open insurrection, who had the respondent a 
right to arrest ? Certainly, all those who are guilty of aid- 
ing in bringing about that state of things, which the statute 
declares to be an insurrection. It being proved that disguised 
men under cover of night committed the most heinous offences, 
there could be no crime in arresting any one of their number; 
but as they concealed their p>ersons by disguises and acted in the 
night time, who they were no one could tell, and only strong 
suspicions could attach to any one ; and if the respondent had 
caused persons to be arrested and detained from the proper 
motives, thus far he might well be acquitted of brutality ; for 
section seventeen of the bill of rights declares that no man 
ought to be deprived of his liberty, &c., save by the law of the 
land. The Shoffner bill suspends the law of the land, so far as 
it declares and is not directly in conflict with an expressed 
law of a higher nature, substituting these for the military law. 
The maltreatment, as proven to have been inflicted upon some 
of the prisoners, I need not say is shocking to humanity. Yet, 
as it is not proven that the respondent ordered or approved of 
the same, he is, therefore, not to be condemned for the act of 
a subordinate exceeding this authority. 


Article 3d alleges that the respondent caused to be arrested 
Josiah Turner, junior, in the county of Orange, without au- 
thority of law. It is admitted that Josiah Turner, junior, was 
arrested in the county of Orange, but that it was done neither by 
the order or approval of the respondent. The facts here are to be 
inquired into, was it done by the order of the respondent. "While 
the declaration of the officer in command would not be suffi- 
cient to convict the respondent — as knowledge of man proves 
that in order to give importance to their acts, the} 7 will intimate 
and even declare their authority to have been derived from the 
highest possible source. Yet this, accompanied with the de- 
claration of the respondent in the presence of Mr. Gorman, to- 
gether with the immediate arrest, leaves the fact beyond doubt. 

Articles fifth and sixth alleges: 

1st. That the respondent caused to be arrested certain citi- 
zens of the counties of Alamance and Caswell without authority 
of law. This is set forth under article first. 

2d. That being so arrested and detained, they applied to 
the chief justice for the writ of habeas corpus, which was 
granted ; that the respondent, through George W. Kirk, 
refused to obey the writ or make return thereto. It is ad- 
mitted by the respondent that the writ was obtained and 
that George "W. Kirk, by his order, refused to obey the 
same, consequently the respondent refused to obey the writ 
for J ? aoit per <Mam fudt per 86 is the language of the law. 
Then did the respondent have any right or authority to diso- 
bey the writ, as the writ of habeas corpus demands the produc- 
tion <>f the body of the person detained. Any disobedience 
carries with it a suspension of the writ, and the 21st section, 
bill of rights, expressly states " that the privileges of the writ 
of Jmlh'titt corpus shall not be suspended." Could the respond- 
ent have been mistaken as to his powers ? No law or statute 
confers such authority, and in addition, the chief justice, the 
expositor of the law, had declared the writ of habeas corpus 
was not suspended. Yet, after being served with the above de- 
eland and adjudged opinion, the respondent did, by means of 


armed force, suspend the only safeguard to individual liberty, 
the great writ of habeas corpus. 

The seventh article alleges that the respondent made warrants 
on the treasury without authority of law. The law is contained 
in 21st section of 22d chapter, special session 1868. 

It now remains to inquire in to the eighth article. I shall only 
inquire as to the right of the respondent to disregard the writ 
of injunction. Finding no precedent, as no immediate necessity 
arose for the total disregard of the mandate of a judge of the 
state, save the payment of troops who were aiding in the crime 
of suspending the highest writ known to the law, I am of opin- 
ion that the respondent could have been actuated by no other 
motive than that of carrying out his own purposes, regardless 
of civil authority in any part of the state, which is criminal in 
anv officer of trust. 

Thus I have endeavored to give the reasons which have gov- 
erned my action, without going into the minute detail of evi- 
dence, or encumbering my opinion with numerous references — 
I hope, also, without being carried away from the immediate 
subject, by discussing the propriety of placing into the hands 
of one man arbitrary powers, or expressing a just abhorrence 
of acts in themselves unpardonable, and with which, it is to bo 
hoped, Xorth Carolina may never again be afflicted, nor her 
representatives be called upon to condemn. And while the con- 
clusion to which I have arrived differs in some particulars front 
that of my personal and political friends, I am willing to accord 
to them motives as pure, intentions as just and honorable as I 
am conscious have actuated myself. 

Hoping, then, that our action may be a lasting rebuke to 
misrule and to the lust of ungoverned ambition ; that it may 
inspire the virtuous with a new attachment to liberty, and a yet 
stronger determination ever to support the just administration 
of the laws within the borders of our noble state ; and lastly, 
having made every possible allowance for that misguided and 
erring judgment which, without necessarily supposing evil 
intent, may, in part, have led to the crime which we condemn, 


I shall not hesitate to vote guilty on the third, fifth, sixth 
and eighth articles; that the respondent be removed from 
office, and that he be forever disqualified from holding any 
position of trust within the gift of that people he attempted to 
dishonor, or under that law he so wantonly violated. 


In arriving at a just conclusion for a proper vote on each of 
-the articles, I have carefully attended to all the suggestions ot 
-counsel for as well as against the guilt of the respondent. Rep- 
resenting in this senate, as I do, the people of Alamance, 
among and against whom a number of the misdemeanors and 
-crimes alleged were committed, I have sought to throw off all 
influences and impressions which were, of course, obtained 
from a thorough acquaintance with that people, their habits, 
views and condition during the period through which they 
-were under the ban of the respondent's proclamatiou of 7th 
IMarch, 1870, and have, in good faith, endeavored to decide the 
issues involved in this trial, as I have been sworn, " truly and 
impartially," and " according to the evidence." 

Though not required by law or precedent to be charged 
with the same nicety and particularity of words and circum- 
stances, the eight articles of impeachment are, in my opinion, 
.aualagous to bills of indictment under our criminal code, (see 
O. J. Pearson's opinion, page 940 of this trial,) and therefore 
I have been obliged to vote upon each article as a whole, and 
" as charged " in the whole article. 

In this view I apprehend I may not have the entire concur- 
rence of other members of this court, of eminent legal ability, 
yet in the celebrated trial of President Johnson this question 
was raised and clearly decided by 0. J. Chase, then pre- 
siding, and his opinion seems to have been unanimously 


assented to by the United States senate. On page 480, 2d 
volume of the trial, C. J. Chase says : 

" In conformity with what seemed to he the general wish 
" of the senate when it adjourned last Thursday, the chief jus- 
" tice, in taking the vote on the articles of impeachment will 
" adopt the mode sanctioned by the practice in the cases of 
" Chase, Peck and Humphries. 

" The chief justice has carefully considered the suggestion 
" of the senator from Indiana, (Mr. Hendricks) which appeared 
" to meet the approval of the senate, that in taking the vote 
" on the 11th article, the question should be put on each 
" clause, and has found himself unable to divide the article as 
" suggested. The article charges several facts, hut they are so 
" connected that they make but one allegation, and they are 
" charged as constituting one misdemeanor" 

Believing my duty and the law to be as above recited, I 
have unhesitatingly voted that the respondent is " guilty " as 
charged in each of the eight articles, respectively, except the 
first, upon that one I have voted he was not guilty as charged. 
In such vote, I should regret to be misunderstood. Upon in- 
spection of the first article, it will be seen that it is therein 
distinctly charged that the respondent 

1st. Did, on the 7th of March, 1870, of his own false, cor- 
rupt and wicked mind and purpose, proclaim and declare that 
the county of Alamance, &c, was in insurrection; and 

2nd. Did send illegal and disreputable bodies of armed 
men into said county, and suspended civil authority therein ; 

3rd. Did by and through such illegal means, arrest many 
peaceful and law abiding citizens in said county ; and 

4th. Did detain, imprision, hang, &c, and otherwise mal- 
treat the same, giving their names. 

Now, as to the respondent's guilt, as charged, in the above 
recited 2nd, 3rd and 4th sub-divisions or clauses of the first 
article, I have entertained no doubt, and had my views of the 



law permitted me thus to separate those three clauses, ex- 
cluding the first, I would, unhesitatingly have voted " guilty," 
as it will be seen I did vote, upon the identical charges re- 
produced in the seventh article. It is upon the first of the 
above clauses of the first article that my opinion has been 
undecided, and that being a part and evidently the most 
prominent part of the " high crime " charged in the first 
article, which I had to vote upon as ' v one allegation," I gave 
the respondent the benefit of my indecision. It will be re- 
membered that the extraordinary " Shoffuer act," as it is 
called, was passed on the 29th January, 1870. The respon- 
dent's proclamation in regard to Alamance county was on the 
7th March, 1870. This " Shoffner act," though in my opinion 
unconstitutional, allowed the respondent, " whenever in his 
"judgment the civil authorities in any county are unable to 
" protect its citizens in the enjoyment of life and property to 
u declare such county to be m a state of insurrection^ 

Now, it is shown in the evidence, that the impressions made 
on the mind of the respondent, in regard to the security of 
life and property in Alamance county, were derived from men, 
citizens of that county, who, like the Messrs. Albright, were 
both his party and confidential friends, and some of whom 
officers in the judicial administration of the county. These 
men doubtless detailed to him their views of the extent of 
crime and terror in the county. Is it therefore unreasonable 
to suppose that, thus informed, the respondent may have 
concluded, that as far as Alamance county was concerned, 
■there was this insecurity ? If this was his judgment, he had 
he right so to proclaim, under said " Shoffner act." Now, it 
is not a question for me, in this connection, to decide whether 
there was or was not an msv/rreotion. Technically speaking, 
there was, indeed, no insurrection nor anything like an in- 
surrection, in either of the counties, nor could any proclama- 
tion of the respondent possibly make one, unless it had there- 
tofore existed. 

The constitution of North Carolina here steps in for the 



guidance of the respondent, and according to its behests 
should he have acted. It says u the governor shall have 
"power to call out the militia, to execute the law, to suppress 
" riots and insurrections, &c. Article XII, section 2." For 
no other purposes, though, can he even use the lawful militia 
in arresting citizens of the state. After issuing his proclama- 
tion, (the legal effect of which, under the " Shoffner act? was 
simply a declaration on his part, that, in his judgment, life 
and property were insecure in Alamance county.) the re- 
spondent proceeded further at his own peril It was his duty 
next, to see to it that there really was an insurrectum before he 
exercised any such powers over the militia in regard thereto. 
Is it not probable, from his long delay in making any use of 
the militia thereafter, that he then knew he had gone as far as 
he could, legally ? I incline to the opinion, from the evidence in 
the cause, that the plan of sending for Kirk to recruit the 
force that afterwards appeared on the stage, had not then 
been determined on, and was only so determined on, under 
the counsel and advice of others, when, as a part of the same 
plan, the county of Caswell was also proclaimed to be in a 
state of iusurrection, while in said county the proof shows he 
had no reason to suspect the existence of any conspiracies. 
nor, from any representations coming therefrom, that there 
was any insecurity whatever. For these latter reasons I voted 
that the respondent was " guilty" as charged in the second 

But little space in this opinion, as I conceive, after the ex- 
hausting arguments and high authority cited by the managers 
in the course of the trial, can be given to the remaining arti- 
cles. No sufficient justification has been shown for the illegal 
arrest of Turner, and indeed nothing, except the fact that it 
was done in a moment of passion or great excitement. I have 
therefore voted •' guilty" on the 3d article. 

The fourth, filth and sixth articles may be considered 
together. They unitedly charge the unlawful arrests of 
numbers of peaceful and law-abiding citizens of both counties, 



and their imprisonment and detention, all by the means of an 
unlawful force of reckless armed men, under command and 
direction of respondent's agents, sent and instructed thereto, 
and also the refusal of the respondent through his said agents, 
to obey the mandates of the writs of habeas corpus, issued by 
supreme judicial authority in the state, in the cases of Moore 
and of others. There being no insurrections, the effort of the 
respondent to supplant the civil authority by the military, and 
by this means to make arrests, at all, without warrant, was 
in violation of sections 9 and 17 of the declaration of the rights 
of the people. His manifest purpose to try, at least, a portion 
of such arrested persons, was directly in the face of sections 
12 and 13 of the same instrument. His refusal to obey the 
writs of habeas corpus was simply annulling the dearest and 
most positively declared of those rights, to- wit : " The 
" privileges of the writ of habeas corpus shall not be suspended." 
See section 21 — also section 18. And the means employed by 
the respondent, (not even by himself regarded as militia, but 
as " state troops,") by which these infractions of the organic 
law were consummated, were, in my opinion, by reason of 
their manner of organization and mustering in, their ages and 
their citizenship, clearly illegal. See constitution, article 
XLT, section 1, and laws 1868, chapter 22. Upon the fourth, 
fifth and sixth articles ; therefore I have voted guilty. 

The foregoing reasons will mainly apply to the seventh 
article, which charges, in addition to the raising of the same 
illegal force, (whereby said unwarranted arrests were commit- 
ted in both of said counties, and cruel and inhuman treatment 
was inflicted upon some of such arrested persons,) also the 
drawing from the- treasury of the state large sums of money 
for their compensation. If the force were thus illegally or- 
ganized, it was unlawful to pay them such sums, as was shown 
to have been done through the agency of respondent. He is 
therefore " guilty" as charged in this article. 

In order to secure such unlawful payments, it is shown, as 
charged in the eighth article, that highly improper official acts 


were committed by the respondent, in contempt of another- 
highly remedial writ, issued by other competent authority in.. 
the state, whereby, in my opinion, he is "guilty" as charged- 


The facts in the above opinion of Senator Gilmer, are, as I 
understand them ; and I concur in the reasoning and adopt- 
the conclusions. 


The charges contained in the eight articles of impeachment 
under which the respondent is arraigned before the bar of the 
senate for trial, may be conveniently arranged as follows : 

First. That the respondent falsely, corruptly and wickedly 
proclaimed and declared the counties of Alamance and CaswelL 
in a state of insurrection. 

Second. That he unlawfully and without warrant, and in_ 
subversion ol the laws and the constitution arrested, detained,, 
imprisoned and otherwise maltreated peaceable and law abiding; 
citizens of said counties. 

Third. That he unlawfully and without warrant, arrested' 
the Hon. Josiah Turner, jr. 

Fourth. That he unlawfully and in subversion of law ancU 
the constitution, suspended the privilege of the writ of habeas! 

Fifth. That he unlawfully recruited an army of desperates 
and lawless characters and equipped them as an army of sol- 
diers, and unlawfully made his warrants upon the treasurer of 
the state for large sums of money for its support and main- 
tain an ce. 

Sixth. That he wickedly, intending to suspend and subvert 
the laws of the state, incited, ordered, procured and commanded 


A. D. Jenkins to defy and disregard a writ of injunction, issued' 
"by one of the superior court judges of the state. 

The foregoing, I think, are the material charges under the 
different specifications against the respondent. My purpose is 
to examine into the truth of these charges candidly and accord- 
ing to the solemn obligations of the oath I have taken, to try 
the respondent impartially. T have no revenge to gratify in 
this matter, and no unkind personal feeling to promote. I 
enter upon the discharge of the high, solemn and important 
duty, with feelings of pain and mortification. That North 
Carolina, my native state, should be the first state in the Union 
to prefer articles of impeachment against her governor, is a 
matter of pain and mortification to the good citizens of the 
commonwealth. With every disposition to judge charitably,, 
and at the same time justly, I approach the investigation. 

Did the respondent falsely, corruptly and wickedly proclaim- 
and declare the said counties of Alamance and Caswell in insur- 
rection ? The answer of the respondent admits that he pro- 
claimed and declared the said counties in insurrection, and 
the only question on this branch of the investigation, therefore 
is, as to whether he did it falsely, corruptly and wickedly. In 
other words, were the said counties in insurrection when so de- 
clared by the respondent, for I take it that the corrupt and 
wicked purpose necessarily follows if it appears that the procla- 
mations are untrue, unless the contrary appears from the 
evidence, and the burden of proof is on the respondent to show 
this. As I understand the position of the respondent, it is not 
pretended by him that these counties were in insurrection 
according to the general legal understanding of that term, but 
it is insisted that the " civil authorities " in these counties were 
u unable to protect the citizens in the enjoyment of life and 
property," and that, therefore, the respondent was authorized 
by the act of the general assembly, ordinarily known as the 
" ShofFner " act, to proclaim and declare said counties in insur- 
rection. Did this act so authorize the respondent ? Every act 
of the legislature must be construed to be consistent with the 


constitution, unless the contrary clearly appears. In using the 
term " insurrection " in the " Shoffner " act, as it is familiarly 
called, I suppose, therefore, that the legislature used it in the 
game sense in which it is used in the constitution, and as there 
is nothing in the constitution indicating that the framers of 
that instrument intended to give the word " insurrection " any 
other than the ordinary signification, it seems clear to my mind 
that the term " insurrection," as used in the act of the lesis- 
lature, was intended to mean an " insurrection " in its usual 
sense. If these propositions are correct, it will follow that the 
enquiry is, whether these counties were in " insurrection " in 
point of fact according to the usual legal meaning ot that term ? 
I have already said that, as I understood the position taken by 
the respondent, he does not pretend that such was the case. 
The act ot the legislature, under which the respondent under- 
takes to justify, recites " That the governor is hereby author- 
ized and empowered, whenever in his judgment the civil au- 
thorities in any county are unable to protect its citizens in the 
enjoyment of lite and property, to declare such county to be 
in a state of insurrection, &c. The commission of a great num- 
ber of crimes in a county will not, I submit, under the wording 
of men this statute, justify the declaration of insurrection while 
the " civil authorities " are unmolested and uninterrupted in 
tbe administration of public justice, and the execution of the 
laws is unresisted. This view, to my mind, is irresistible, for to 
conclude that the " civil authorities are unable to protect its 
citizens in the enjoyment of life and property," while they 
are uninterrupted and unresisted in the exercise of their power, 
is to admit a weakness in the administration of the laws incon- 
ceivable, and such a conclusion could onlv have the effect to 
bring into contempt the administration of the laws by civil 
authority, and would justify either the abolition of the system, 
or the removal of the weak and imbecile authorities, as it 
might appear that the one or the other was at fault. I con- 
clude that a state of insurrection cannot exist where the '' civil 
authorities" are in the full, free and unrestrained exercise of 


power. The proof in this case is full that there was no resis- 
tance to the execution of the laws in Alamance and Caswell. 
The courts were regularly held, and the officers say that they 
could execute any process or warrant in their hands. There 
was no resistance to the execution of the laws. Alamance and 
Caswell were not, therefore, in " insurrection " in point of 
fact, and if this he so then it follows from the premises herein 
laid down that the respondent's proclamation was false as 
charged, and that he knew it to be so. 

Secondly. Did the respondent unlawfully arrest, detain, hold, 
imprison and otherwise maltreat, many of the peaceable and 
law-abiding citizens of said counties ? The respondent in his 
answer admits the arrest and detention of the persons named 
in the articles of impeachment. Were these arrests made un- 
lawfully and without warrant, is, therefore, the question for in- 
vestigation ? If there was no insurrection existing in the terri- 
tory in which the arrests were made, it must most certainly fol- 
low that they were unlawfully made, unless made by peace offi- 
cers in the ordinary discharge of their duties, or by due pro- 
cess issued by some magistrate. The provisions of our law are 
clear, distinct and emphatic in reference to this matter, and can- 
n< »t be misunderstood. If the arrests were made under warrants, 
or in due course of law, it is matter of defence, and it devolved 
upon the respondent to show the authority under the plea of 
justification. The mere fact that violations of the criminal law 
were committed in these counties is not a sufficient justifica- 
tion. There must be resistance to the execution of the laws. 
No such proof has been offered in evidence. I conclude, there- 
fore, that the second charge has been established according to 
the rules of evidence obtaining in courts cf justice. 

Thirdly. Did the respondent without any lawful authority 
arrest ilic Hon. Josiah Turner in the county of Orange? 

The answer to this article admits the detention, but denies 
that the respondent ordered the arrest. The question pre- 
sented here is one of fact, as a justification in law can hardly 


be said to have been pretended even faintly. The proof is sat- 
isfactory — indeed full and complete. 

The fourth charge is an exceedingly grave and serious one. 
The privilege of the writ of habeas corpus has ever been held 
among the dearest rights of the citizen of the United States. 
Without the right to have the legality of the caption, deten- 
tion and imprisonment of the citizen inquired into, the 
liberty of which we so much boast, becomes a mere empty 
sound, without any foundation. Indeed, it becomes a false 
and hypocritical cry. Our revolutionary fathers who framed 
the constitution of the United States duly appreciated 
this great and important right, and guarded it by insert- 
ing it into that instrument among the prohibitions upon 
the powers of the congress, paragraph 2, sec. 9, of art. 1 : 
" The privilege of the writ of habeas corpus shall not be sus- 
pended, unless when in cases of rebellion or invasion the public 
safety may require it " The present constitution of North 
Carolina emphatically says, " the privilege of the writ of habeas 
corpus shall not be suspended' 1 '' — a positive prohibition without 
exception. The right to suspend this great privilege, even 
by the highest authority of the United States, is utterly 
inconsistent with a time of peace, and the framers of our fun- 
damental law have cautiously guarded the right of the citizen 
in this particular. Except in ''cases of rebellion or invasion 
when the public safety may require it," the privilege of this 
great writ of right can never be suspended. Only in a time of 
war can any authority in the United States exercise this power. 
If our state constitution were entirely silent on the subject it is 
believed that the constitution of the United States is sufficient 
to prohibit any state authority from its exercise without the 
express consent of congress. In the second paragraph of sec- 
tion 10 of the 1st article of the constitution of the United 
States, the following language occurs : "No state shall, without 
the consent of congress, lay any duty of tonnage, keep troop*, 
or ships of war in time of peace, enter into any agreement or 
■compact with another state, or with a foreign power, or engage 


m war, unless actually invaded, or in such imminent danger 
as will not admit of delay." It will, therefore, be seen that 
the states are forbidden " to engage in war, and as the right to 
suspend the writ of habeas corpus, at most, exists in even the 
United States authorities only " when in cases of rebellion 
and invasion the public safety may require it," surely it 
can hardly be contended that any state authority which is 
forbidden to " engage in war " can exercise this power, which is 
only incident to a state of war — " rebellion or invasion." No 
more serious charge could be brought against the respondent. 
Is the charge sustained by the proof in the case ? Did the 
respondent suspend the privilege of this great writ of right ? 
That he did refuse to obey the writ, I think, is admitted in the 
answer of the respondent. On pages 30 and 31 of respondent's 
answer, the tollowingjlanguage will be found : "Furthermore this 
respondent admits that the said Adolphus G. Moore applied 
to the honorable Richmond M. Pearson, chief justice of North 
Carolina, for the writ ot habeas corpus, to the end set forth in 
said fifth article, and that the said chief justice caused the said 
writ to be issued and directed to the said George W. Kirk, 
commanding him to produce the body of said Moore, at the 
time and place alleged in said fifth article, and this respondent 
further admits that the said writ was served on the said Kirk, 
and that the said Kirk made no return thereto, and refused to 
obey the same, and that this failure on the part of said Kirk to 
make return to said writ and to produce the body of said Moore 
in obedience thereto, was done by the order of this respondent 
as governor of North Carolina : I take this to be an admission 
that he refused to obey the writ, and having an organized 
military force under orders to resist the execution of the writ, 
it amounted in point of fact to suspending the writ. Was the 
respondent authorized to do this by the constitution and laws 
of the state 8 1 have undertaken to show that the constitution 
of the United States forbids the exercise of this extraordinary 
power I iv any authority of a state. I have unquestionably 
shown that the constitution of North Carolina positively for- 


bids the suspension of the writ. How then can the respondent 
justify the exercise of the power % He undertakes this task by 
asserting that these counties were in insurrection. In my 
argument upon the first charge, I undertook to show that there 
could not be a state of insurrection where the "civil authori- 
ties 1 ' were in the full, free and unrestrained exercise of their 
powers, and were not resisted in the execution of the laws. I 
also referred to the proof in this case to show that there was 
no resistance to the execution of the laws in Alamance and 
Caswell, and that the " civil authorities " were in the full, free 
■and unrestrained exercise of their powers. If my conclusions 
were correct the defence on this point necessarily fails. But it 
is contended that the act of the legislature conferred upon the 
respondent a discretionary power, and that we cannot go behind 
the proclamation to ascertain how the fact is in reference to the 
question of insurrection. I do not believe, as I have hereto- 
fore in this opinion undertaken to show, that any such arbi- 
trary power was intended to be conferred by the act of the 
legislature even as to the proclamation ot insurrection. 
The respondent can not in this way justify an act in direct 
violation of the constitution. The history of the legislature 
on this subject negatives any such idea as that the act was 
intended to confer upon the respondent the power to suspend 
the privilege of the writ of habeas corpus in direct violation 
of the words of the constitution. All that can be contended 
with any kind of plausibility, is that the act authorized the 
respondent to declare a constructive insurrection subject to the 
prohibitions of the constitution of North Carolina. But it is 
said insurrection did exist for the purposes of the action of 
the respondent, and that in cases of insurrection a suspension 
of the writis a necessaiy incident. If this were so in ordinary 
cases, still I maintain that it could not be so in North Caro- 
lina under the present constitution, because the power to sus- 
pend is positively forbidden. I am free to admit, however, 
that if the respondent had exercised even this excess of au- 
thority with a view to the public good he might be excusable. 


How is it in this case ? It is perfectly manifest that the 
respondent exercised this excess of authority for the purpose 
of promoting partizan ends, and not even to suppress crimes, 
much less an insurrection. This is manifest from the fact 
that he arrested individuals against whom not even the sus- 
picion of crime rested. The conduct of the respondent in 
reference to this charge can not be considered otherwise than 
as a most flagrant violation of the constitution and laws, and 
as exhibiting a wickedness of purpose rarely ever equalled in 
the history of civilization. I am pained to feel compelled to 
use such strong language, but my indignation at such a 
flagrant abuse of power I feel ought not to be suppressed. 
The liberty of the citizen in this honest old commonwealth is 
too dear to be placed at the mere discretion of any petty 
tyrant who may happen to be clothed with a " little brief 
authority." The framers of our fundamental law have been 
too cautious to preserve and guard the right secured and 
extorted from tyrants by the best blood of a noble ancestry, 
for us thus lightly to deal with the subject. The respondent 
had the right, and it was his duty under the act of the legis- 
lature which has been relied on for his defence, whenever he 
thought it was necessary to aid the " civil authorities in any 
county to protect its citizens in the enjoyment of life and 
property," to organize a legal force, such as the law author- 
ized him to organize under the militia laws of the state, and 
send them in aid of* the " civil authorities," and in subordina- 
tion to civil authority. For the 24th section of the first 
article of the constitution of our state emphatically says : 
" A well regulated militia being necessary to the security of 
a free state, the right of the people to keep and bear arms 
Bhall not be infringed ; and, as standing armies in time of 
peace, are dangerous to liberty, they ought not to be kept up, 
and tlie military should be kept under strict subordination to, 
and governed hy the vwil power." CrimeB were committed, it 
is shown, in the counties of Alamance and Caswell of a char- 
acter calling for extraordinary diligence on the part ot the 


M civil authorities," and it was the duty of the governor of the 
state to use all proper power to aid the civil authorities in 
bringing these culprits to justice, but the language used in 
the proclamations of the respondent exhibit a partizan feeling 
unworthy of the high dignity of the office to which the people 
of the state had called him, and discloses a motive utterly in- 
consistent with honesty of purpose. 

But I have perhaps said enough on this charge, and 1 there- 
fore pass to the fifth charge embraced under the head of 7th 
article of the impeachment, and this and the charge contained 
in the 8th article, I shall notice very briefly, as I have taken 
more time in considering the preceding than I intended. I 
have already said that the governor would have been justified 
in raising or rather organizing the militia in aid of the civil 
authorities in Alamance and Caswell. He could do nothing 
more than to send such force as he might by law be authorized 
to organize in aid of the civil authorities. George W. Kirk, he 
knew to be a desperate character, and offensive in every 
respect, and that the respondent employed him for the purpose 
of stirring up strife, and to produce civil war in our state, by 
provoking the good people of the state beyond endurance, I do 
not believe any honest man can doubt. That he had no power, 
as he did to call into his service, citizens of another state, or- 
ganize them into an army and use them for the perpetration of 
untold outrages and cruelties on our citizens, as the evidence 
shows that he did, and draw his warrants on the treasurer of 
the state to pay for their services out of the hard earned taxes 
ot the people, every man who understands the constitution and 
laws of the state I think must admit. I will not therefore say 
more on this charge, but will pass to the last, and sixth charge 
contained in the eighth article. 

Did the respondent, " wickedly intending to suspend and 
subvert the laws of the state, and to defy and disregard the law- 
ful authority" of the court, "persuade, incite, order, procure 
and command A. D. Jenkins " to defy and disregard the writ 
of injunction," and to deliver the money in his hands to 


another agent of the respondent to be used for the unlawful 
purposes alleged in the 8th article ? 

I shall enter into no details of the evidence to justify my 
vote on this charge. It is satisfactory to my mind, and I believe 
to every unprejudiced mind, and lean see no legal justification 
for it. Having discharged what I conceive to be simply a high 
and solemn duty, I offer no apoligy to any one, and can only 
say, if I have erred in my opinion of the law it is an honest 
error, and being in the interest of individual liberty may be 
pardonable in a devoted friend to the personal liberty of the 


This cause should be decided upon the reasons and presump- 
tions which by law apply to all other criminal accusations. It 
should be decided upon the great and everlasting principles of 
truth and justice. 

The house of representatives of the state of North Carolina, 
did, on the 20th day of December, 1870, exhibit to the senate 
eight articles of impeachment against "William W. Holden, who 
has been put on trial in this senate, sitting as a court of impeach- 
ment, to answer the accusations as set forth in said articles. 

The law declares that, " The court for the trial of impeach- 
" ment shall be the senate." 

" A court is defined to be a place wherein justice is judically 

Before entering upon this trial, each senator took an oath, 
" truly and impartially to try and determine the charges in 
'.' question, under the constitution and laws, according to the evi- 
" dence." 

This cause then should be " truly and impartially tried and 
" determined, under the constitution and laws, according to all 
".the^evidence," which should be fully and fairly considered. 


The articles of impeachment allege that William W. Holden 
" did commit high crimes and misdemeanors in office, against 
" the constitution and laws of the state, and the peace, dignity 
a and interests thereof." 

It is necessary to correctly understand the true meaning and 
application of those grave and important allegations. 

" A crime or misdemeanor, is an act committed or omitted, 
" in violation of a public law, either forbidding or commanding 
" it. This general definition comprehends both crimes and mis- 
" demeanors, which, properly speaking, are mere synonymous 
" terms ; though, in common usage, the word " crimes " is made 
" to denote such offences as are of a deeper and more atrocious 
" dye ; while smaller faults, and omissions of less consequence, 
" are comprised under the gentler names of " misdemeanors " 
" only." Blackstone, Book 4, page 3. 

It may be remembered, that although it has been alleged, it 
has not been shown that the respondent did commit any " high 
crime," as defined by our constitution, or by any criminal 
statute law of North Carolina. It has not been alleged that 
he has committed treason, which is, indeed, a "high crime," 
and it is clearly defined by section seven of article lour of our 
state constitution, which declaresthat " treason against the state 
" shall consist only in levying war against it or adhering to its 
" enemies, giving them aid and comfort." Neither has it been 
alleged that the respondent has committed murder, arson, bur- 
glary or rape, which are also " high crimes." It has not been 
even pretended that he has committed either one of those 
" crimes." But he has been accused of " intending to stir up 
" civil war, and subvert personal and public liberty and the 
" constitution and laws of this state, and of the United States, 
" and contriving and intending to humiliate and degrade this 
" state and the people thereof, and especially the people of the 
" county of Alamance, and to provoke the people to wrath and 
" violence." 

There is no statute law for inflicting any kind of punish* 
ment on any person merely for intentions, and the question 



arises whether it can be a crime or misdemeanor in a single 
person, without combination or conspiracy with others, to 
contrive and intend means without executing the schemes. 
To contrive and intend is an intellectual process, and when 
not executed by acts done cannot be punished as a crime, 
however unworthy or vicious. Shall we vainly attempt to do 
something infinitely more than any other human tribunal on 
earth has ever attempted to do, and that is to punish a man 
for what may be his supposed thoughts and intentions ? Shall 
we undertake the punishment of the thoughts, opinions, pur- 
poses, conceptions, designs, devices and contrivances of men 
when not carried into acts ? All such allegations are contrary 
to that reason which is said to be the soul of the law. 

But instead of acting unlawfully as it has been alleged, the 
respondent, it seems, was sustained by the laws under which 
he acted. 

Sections two and three of article twelve of our state consti- 
tution declares that " the general assembly shall provide tor 
the organizing, arming, equipping and discipline of the 
militia, aud for paying the same when called into active service. 
The governor shall be commander-in-chief, and have power 
to call out the militia to execute the law, suppress riots or in- 
surrection and to repel invasion." 

Under this requirement of the constitution, the general as- 
sembly passed " an act to organize a militia of North Carolina," 
ratified the 17th day of August, A. D. 1868. Said act declares 
that " the militia shall consist of companies, regiments, brigades 
and divisions as now required by law." 

" The regulations of the United States army shall be adhered 
" to as near ^as practicable in organizing the militia of this 
" state." 

"The governor is hereby authorized to accept and organize 
" regiments of volunteer infantry, not exceeding six." 

" The said detailed militia shall be under the command of 
"the governor and be subject to his orders, and may be sent 
"to any portion of the state by him." 



" Any officer of said detailed militia shall have power and it 
" shall be his duty to use such force as may be necessary to over- 
" come resistance, in quelling riots or making arrests, and not 
" otherwise." 

Much has been said about accepting as volunteers in the 
militia service some persons who were non-residents of the 
state, and not of the age prescribed by law for militia duty. 
There is no law in this state to prevent or exclude volunteers on 
account of their age or residence, if the proper officers think 
such volunteers are capable of performing the duty required of 

As to what has been said relative to calling the volunteer 
militia state troops, instead of militia, it is only necessary to re- 
mark that the name was changed upon the suggestion of Judge 
Clarke, who was colonel of the first regiment, as he testified 
before this court. 

The facts have been conclusively proved by scores of reliable 
witnesses during this trial, that the most barbarous and atrocious 
crimes and outrages were committed on peaceable and unoffend- 
ing citizens by large bodies of armed and disguised midnight 
murderers and assassins, commonly called Kuklux. That 
wicked and lawless organization, not having the fear of God 
before their eyes, and moved and instigated by the devil, con- 
tinued to murder, shoot, hang and scourge men, and yet none 
of the guilty perpetrators of those terrible, hideous and horrid 
crimes and outrages were ever punished by the civil law. 

That was indeed an extraordinary state of affairs. It has 
been proved that the Kuklux organizations had ten different 
camps in operation in the county of Alamance alone. It has 
been also proved that Albert Murray, the sheriff of Alamance, 
was chief ol the Kuklux camp No. 1, in said county, and he so 
stated in his examination on oath. It has been also proved 
that some of the conservative magistrates ot the county were 
members of the Kuklux organization, and that the deputy- 
sheriff was also a Kuklux. 


Each member of the Kuklux organization was required to 
take the following unlawful oaths : 

" Tou solemly swear in the presence of the Almighty God 
that you will never reveal what is now about to come to your 
knowledge, and you will never reveal the names of the men 
that initiate you, and that you have not, and do not belong to 
the Red Strings, U. L. or H. of A. M., or other political 
society or party whose aim and intention is to destroy the 
rights of the states and of the people, and to elevate the negro 
with the white man, and you are opposed to all such organiza- 
tions. So help you God." 

2d oath. " You now further swear in the presence of the 
Almighty God, that you will be true to the principles of the 
brotherhood and to the members ; that you will never reveal 
any of its edicts, orders, or principles to any person, not even a 
known brother, or that you are a member yourself, or who are 
members, and that you will obey all calls and summons of the 
chief of your camp when in your power to do so ; and should 
any member reveal any of the acts, orders or secrets of this 
brotherhood, that you will assist in punishing them in any way 
that the camp may direct, and that you will not initiate or allow 
in this brotherhood any radieal or any one who sympathizes 
with them or lias radical views, it in your power to prevent. 
And should you know or see any brother or his family imposed 
upon by any radical or negro, you will go to their assistance 
and render them all the aid in your power, or should you know 
them to be in imminent danger, you will immediately inform 
them and go to their assistance, and should you hear the word 
ot alarm given, that you will go immediately to ascertain the 
cause and tender all the aid in your power. So help you 

6th. Then; shall be six (6) regular initiated members in this 
district before they have a right to form a camp and organize. 

7th. All members are requested to be suitably disguised and 
ready for all occasions. 

8th. All members are honor bound to induce all true eonserv- 



atives to join the brotherhood ; in no case to mention such to 

9th. The word of distress shall never be used by any mem- 
ber only in cases of imminent danger or peril. 

The following letter to Gov. Holden from five prominent 
citizens of Alamance, justices of the peace and the clerk of 
the superior court, will explain itself: 

Graham, K C, February 28th, 1870. 

His Excellency "W. W. Holden, Governor of J\ T orth Carolina : 

Dear Sir : — We are under the painful necessity of informing 
you of the commission of the most atrocious murder ever com- 
mitted in any community. On the night of the 26th inst, a 
body of disguised men came into our town at about one o'clock, 
broke into the house of "Wyatt Outlaw, and took him to the 
public square near the court house and hung him to the limb 
of a tree, where he was found hanging the next morning, his 
neck broken, with a piece of paper writing pinned to him,. 
" Beware you guilty, both white and black." This body of dis- 
guised men were seen by three of the undersigned, and are 
estimated to consist of from seventy to one hundred in number. 
Outlaw was an industrious mechanic, well to-do and prospering. 
No crime can be alleged against him except that he is a colored 
man, a republican, and has presumed to hold the office of town 
commissioner for two terms, once by your appointment and the 
second by an election of the people. On the same night these 
disguised men broke into the house of Henry Holt, a colored 
man. Holt escaped, but they left word with his wife that if 
he did not leave by next Saturday night they would hang him, 
and cut a cord from his bed with which they hung Wyatt. 
"Within the last two weeks brutal outrages have become com- 
mon, almost nightly, and people have become so terrified that 
they dare not report the outrages committed on them. Every 
republican in the county who has stood up for his own rights 


and that of the freedmen is in danger. The civil authorities 
are powerless to bring these offenders against law and humanity 
to justice. Out of the numberless cases occurring in the 
county, not one has yet been indicted, much less punished, and 
we know of no way in which these bands of lawless men can 
be put down and punished except by the strong arm of the 
military. Our people are not only alarmed, but many are in 
great danger. If these disturbances are not arrested many 
will have to seek safety from home. 

"We respectfully submit to your excellency to take such steps 
as will insure the quiet of the county and the safety of all 

Yery respectfully, 


Under such extraordinary circumstances, it was highly neces- 
sary to resort to extreme measures to suppress such diabolical 
crimes, as it sometimes becomes necessary for the surgeon to 
amputate an arm or a leg to save the life of the patient. Ex- 
treme cases justify the application of extreme remedies. 

The governor issued proclamation after proclamation in vain. 
The Kuklux organizations still continued to murder, hang, shoot 
and scourage peaceable and law-abiding citizens. The sworn 
testimony before this court has shown that more than twenty 
white citizens, and more than forty colored citizens were cruelly 
beaten, scouraged, shot and hung, by bodies of armed and dis- 
guised murderers and assassins, and none of whom were pun- 
ished for their atrocious crimes. 

On the 29th of January, 1S70, the general assembly passed 
"An act to secure the better protection of life and property." 

The first section of said act declares as follows : 

" That the governor is hereby authorized and empowered* 


whenever in his judgment the civil authorities in any county 
are unable to protect its citizens in the enjoyment of life and 
property, to declare such county to be in a state of insurrec- 
tion, and to call into active service the militia of the state to 
such an extent as may become necessary to suppress such in- 
surrection ; and in such case the governor is further authorized 
to call upon the president for such assistance, if any, as in his 
judgment may be necessary to enforce the law." This act 
and " an act to organize a militia of North Carolina," ratified 
the 17th day of August, A. D. 1868, authorized the governor 
as commander-in-chief to organize and call the militia into 
active service. 

It has been alleged that the respondent acted in violation of 
law. But it may also be affirmed that extraordinary cases may 
sometimes justify extraordinary means and remedies, as when 
it becomes absolutely necessary for the surgeon to amputate a 
leg or an arm in order to save the life of the patient. 

In speaking of the insurrection in the state of Pennsylvania, 
in the year 1791, Aaron Bancroft, in his life ot George 
Washington, president of the United States, page 114, says: 

" The secretary of the treasury, the secretary of war, and 
the attorney general, were of opinion that the president was 
bound by the most sacred obligations to use the means placed 
at his disposal, faithfully to execute the law. They therefore 
advised him to try the power of the government to coerce sub- 
mission ; and from policy and humanity to march a force into 
the insurgent counties too strongly to be resisted." 

The president did not hesitate to do his duty. Without 
exerting the means ol prevention in his power, he could not 
see the laws prostrated, and the authority of the United States 

On the 7th of August he issued the proclamation which 
the law made a pre-requisite to the employment of force. In 
it he gave a recapitulation of the measures of government, 
and of the opposition of the insurgents, and thus proceeded : 
" Whereas, it was in his judgment necessary, under the cir- 



cumstances of the case, to take measures for calling forth the 
militia in order to suppress the combinations aforesaid, and 
to cause the laws to be duly executed, and he had accordingly 
determined so to do ; feeling the deepest regret for the 
occasion, but withal the most solemn conviction that the 
essential interests of the Union demanded it ; that the very 
existence of government, and the fundamental principles of 
social order were involved in the issue ; and that the patriot- 
ism and firmness of all good citizens were seriously called 
upon to aid in the suppression of so fatal a spirit." The pro- 
clamation closed by ordering all insurgents, and all other per- 
sons whom it might concern, on or before the first day of the 
ensuing September, to disperse and retire to their respective 
homes. Orders were on the same day issued to the governors 
of New Jersey, Pennsylvania, Maryland and Virginia for 
their respective quotas of twelve thousand men, which at a 
subsequent period was increased to fifteen thousand, who were 
to be held in readiness to march at a minute's warning. 

Reluctant to draw the sword upon his fellow citizens, the 
president at this awful crisis, determined to make one more 
attempt to reclaim by mild entreaty his deluded countrymen. 
The attorney general, Judge Yates, and Mr. Boss, were com- 
missioned to bear to the insurgents a general amnesty for all 
past crimes, on condition of future obedience ; but the clem- 
ency of the government was again spurned, and its power 

The insurgents, forming an opinion from the language of 
democratic societies, and from the publications in anti-federal 
newspapers, seem to have entertained the supposition that 
their disaffection was generally felt by the citizens of the 
United States, and that the attempt to suppress them would 
issue in a revolution of the government. 

That the executive of Pennsylvania might act in unison 
with the national administration, Governor Mifflin had also 
issued a proclamation, and appointed commissioners to join 
those of the nation. 

AtftiHMX. 57 

The faction opposed to the government insidiously at- 
tempted to obstruct the execution of the orders of the presi- 
dent, but without effect ; the community expressed unequivo- 
cally the determination to support the government and to exe- 
cute the laws. The personal influence of Governor Mifflin 
surmounted the obstructions which arose from the insufficiency 
of the militia laws of Pennsylvania ; the oiAcers and men of 
the respective states obeyed the summons with an alacrity that 
exceeded the expectation of the most sanguine, and the re- 
quired number of troops was seasonably in readiness to obey 
the orders of the commander-in-chief. 

The command of the expedition was given to Governor Lee, 
of Virginia, and the governors of Pennsylvania and New 
Jersey commanded the militia of their respective states under 
him. This force moved into the insurgent counties and bore 
down all opposition. Thus by the vigor and prudence of the 
executive, this formidable and alarming insurrection was, with- 
out the sacrifice of a life, subdued. 

The president attributed this insurrection, in a great degree, 
to the influence of the democratic societies. This opinion 
he expressed in his private letters and in his public communi- 
cations to the legislature. In a letter to Mr. Jay, he ob- 
served, " That the self-created societies, who have spread them- 
(l selves over this country, have been laboring incessantly to 
" sow the seeds of distrust, jealousy, and, of course, discontent, 
" hoping thereby to effect some revolution in the government, 
" is not unknown to you. That they have been the fomenters 
" of the western disturbances, admits of no doubt in the mind 
" of any one who will examine their conduct. But, fortunately, 
" they have precipitated a crisis for which they were not pre- 
u pared ; and thereby have unfolded views which will, I trust, 
■" effect their annihilation sooner than it might have happened." 

Gen. Washington had the firmness and independence to 
denounce these societies to the national legislature, and to 
lend his personal influence to counteract their designs, thereby 
bringing upon himself their resentment. 


In 1794, fifteen thousand men were called into active service 
from the states of New Jersey, Pennsylvania, Maryland, and 
Virginia, to suppress the insurrection in certain western coun- 
ties in Pennsylvania, although there had not been even one 
single individual murdered, hung, shot or scourged, by the in- 
surgents in said counties. 

In North Carolina, organized bodies of armed and disguised 
men, under the name of Kuklux, have committed the most atro- 
cious outrages upon scores and scores of peaceable citizens, at 
their own homes and in the darkness of night ; and yet no 
person has been punished for any of those horrid crimes. 

On the 26th of February, 1870, Wyatt Outlaw, colored, a 
citizen of Alamance, was taken from his house in the town of 
Graham, by disguised persons known as the Kuklux, and 
hanged by the neck until he was dead, on a tree near the court 

On the 21st day of May, 1870, John "W. Stephens, white, 
state senator from the county of Caswell, was murdered in open 
daylight, in the courthouse in the village of Yanceyville. 

On the 13th of May, 1870, Robin Jacobs, colored, living 
near Leasburg, Caswell county, was murdered at night by a 
band of Kuklux. 

But it is deemed to be unnecessary, at present, to recapitulate 
the voluminous mass of evidence brought out before the senate 
during this impeachment trial, which shows that about seventy 
citizens, white and colored, were scourged, shot, hung and 
murdered by bodies of armed and disguised Kuklux. 

T. M. Slioffner, a republican senator in the general assembly 
of this state, from the counties of Alamance and Guilford, was 
compelled to sacrifice his property, and, to save his life, to make 
his escape from said county, on account of his opposition to the 
Kuklux, and his devotion to the government of the United 

The governor was authorized by law to exercise his own 
judgment and discretion as to the necessity for declaring the 


counties of Alamance and Caswell to be in a state of insurrec- 

North Carolina is not the only state that has passed laws au- 
thorizing the governor, in certain contingencies, to declare any 
county to be in a state of insurrection. 

The legislature of the state of New York, in 1845, passed 
" an act to enforce the laws and preserve order," similar to "an 
act to secure the better protection of life and property," passed 
by the legislature of this state in 1870. 

The act of the state of New York vested discretionary power 
and authority in the governor to call out the militia and to de- 
clare any county to be in a state of insurrection. By authority 
of that act, Governor Silas Wright, of the state of New York, 
did declare one county to be in a state of insurrection, in 1846, 
but no proposition was ever brought forward to impeach, or 
even to censure Gov. Wright, for exercising his discretionary 
power in declaring a county in insurrection. 

" For the law will not cast an imputation on that magistrate 
whom it entrusts with the executive power, as if he was capa- 
ble of intentionally disregarding his trust." — Blackstone, Book 
1, page 185. 

Circumstances sometimes arise which excuse or justify a 
resort to extreme measures, as when a large and destructive 
fire is rapidly spreading in a town or city, it may become neces- 
sary to demolish and destroy a valuable house in order to 
check and stop the rapid progress of the fire and to save many 
other valuable houses. A man's wife or child or some other 
person may be dangerously sick, and he sends for a physician 
to come and assist the patient ; the physician sends his pre- 
scription to the apothecary for quinine, which is generally used 
for chills and fevers, but the apothecary sends strychnine, 
which is administered to the patient and causes immediate 
death. Of course no reasonable man would then allege that the 
man who first sent for the physician was guilty of any 
crime. It was his intention to assist in restoring the patient to 


All public servants, and especially all high public function- 
aries, must necessarily exercise more or less discretionary 

The legislative, executive and judicial departments of our 
government, each and all, exercise many discretionary powers 
in the performance of their various duties. 

In deciding upon this grave and important question of im- 
peachment, it would be well for us all to bear in mind that 
charitable and divine advice of St. Paul, which says: 

" Let all bitterness, and wrath, and anger, and clamour, 
and evil speaking be put away from you with all malice." 


I do not intend to examine in detail the several articles of 
impeachment ; I have not the leisure for such a task, if I had 
the inclination. I will, however, consider according to my 
ability, and as a reason for my vote, some of the legal ques- 
tions involved in this trial. And, first as to the nature of 
this proceeding. By the constitution of the state, it is ex- 
pressly provided, "that the judicial power of the state shall 
be vested in a court for the trial of impeachments, a supreme 
court, superior courts, courts of justice of the peace and 
special courts." It is conceived, therefore, that impeachment 
is a judicial proceeding for the trial of a real crime, and not 
political, and that the senate, when sitting as such court ex- 
ercises judicial functions according to existing law. The 
house of representatives, through its managers, appear be- 
fore us in the character of accusers, and senators, constituted 
as a court, perform the functions of a complete supreme 
judicial tribunal from whose decision there is no appeal. It 
is the constitutional mode of bringing great offenders to jus- 
tice for offences of an official criminal character, tending to 
the subversion of social order, and the regular administration 


of justice, which by reason of their quality and magnitude 
are beyond the ordinary process of law, and which the su- 
preme legislative power is alone competent to prosecute with 
effect. Impeachment, as a mode of criminal procedure, should 
be resorted to only in extreme cases, when the presumption 
is great and danger imminent, and whenever the people are 
satisfied that their ruler has acted in excess of power, and med- 
itated a subversion of their liberties ; but every accusation 
against such ruler, to be well founded, must have or allege a 
substantial crime for its basis — a crime known to the common 
or statute law. I take it to be well settled in England, that a 
court of impeachment must administer the same law as the 
criminal court, and that the evidence on an impeachment must 
be the same as on an indictment. " An impeachment is a 
prosecution of the already known and established law." 4 
Blackstone Com. 259. Hence the respondent in this case may, 
as a matter of right, claim the full benefit of the rule in criminal 
cases, " that he may only be convicted when the evidence 
makes the case clear beyond a doubt." In the impeachment 
trial of the Earl of Macclesfield, which occurred in England 
about the time of the formation of our federal constitution, it 
was maintained by the respondent, who was himself an eminent 
lawyer, that he had committed no act for which he could be indict- 
ed, and therefore he had committed no impeachable offence. This 
case was distinctly put upon the ground, that an act to be im- 
peachable, must be indictable, and amount to a breach ot the 
common law. In Lord Melville's case, determined in 1806, who 
was impeached for malversation in office, the question was sub- 
mitted to the common law judges, "whether the acts charged 
were unlawful so as to be the subject of information or indict- 
ment." The judges determined that question in the negative, 
and this being intimated, he was acquitted. These two cases 
are the most elaborate on the subject and contain throughout, 
on all the points presented, a precision of statement, so as to 
render them worthy to be adopted as precedents, and were de- 
termined at a period of time in English history, when party 


rancor had subsided and the poHtical mind rn\><y 
rest. And this brings en to B coi tion ol ourov 

the language of Which is: "That every in tbi 

shall be liable to impeachment for, 1st Oorruption 
misconduct in his official capacity 2d. Habitual drunk 
3rd. Intoxication while engaged in the • 
4th. Drunkenness in any public place. 5th, Mental or p 
cal incapacity to discharge the duti< - "fin's offl 
criminal matter the conviction whereof wonld tend i 
his office into public contempt. 11 Tl nd. third I 

and fifth sub-divisions are not the Bubjed 
charge. The sixth sub-division is an accumulate 
and gives a definite meaning to the number and cl 
crimes that are impeachable, or in other woi 
be impeached tor any of the offences enumerated, and I 
act that may be the subject of an indictment, and i 
Having thus disposed of the preliminary question! I proceed 
to consider in their order the first and second articles 
Do the facts proved establish the existence of an "insuj 
tion" in ttie counties of Alamance and Caswell? It ap] 
by the evidence that peace officers were ready, and that th- 
courts were open to hear criminal accusations, sad to p dross 
wrongs. No officer of the law was resisted. The processes 
the courts were unobstructed. It also appears that thei 
isted secret combinations of men. having a common design, to 
obstruct the fair administration of justice by threats, terrorism, 
violence, acts of outrage, assassination and murder, who. d 
guised, and masked, and with arms in hand, rode about und- 
cover of night, to commit these murders and various outrages, 
to the common terror of the colored population, if not gener- 
ally to that of those who differed politically from them. This 
association had its lines of communication, its signs, passwor 
and grip, and by its rules denied membership to an avowed 
republican. It assumed the powers of government by bestow- 
ing on its members the right to punish, and by promising pro- 
tection to those who should carry out these unlawful acts of 


Bo great was the terror that, in the iii- 
which the perpetraton of the '-rimes were known, witnesses 
lould not I"; indnoed to testify against them, while in the 
majority of of enhadtb a a disposition to disc o ver 

i, the identity of the parties ooold Dot be recognised. 
These are th< Do they eonstitnte an insurrection within 

the meaning "t" the constitution ' It i.- reasonable t-> Mippose 
the framen of that instrument employed the term insur- 

ion in the affixed t<» it by the laws of the United 

and at defined in adjudged eases. Tb rnof is 

empowered t«. call Forth the militia, fii site the b 

i'!, t.) suppress Hut.- <t insurrections, and third t«» repel 

igion. Now, almost the same pow< -ted in tin 

nor. mmander-in-chief, are by the oonstitutioD of tlie 

United States, ti \«< 1 in ron^re->. "to provide tor calling forth 

the militia, to execute the laws "t' the Union, suppress insor- 

ind repel int i effect to this 

rision, passed an act Feb. 28, 1795, of which sections two 
and three read ss follows: "That whenever the laws of the 
United States shall be opposed, or the execution thereof obstruct- 
ed in any state by combinations too powerful to be Bupprei 
by the ordinary course of jut icial proceedings, or by the powers 

bed in the marshals by this act, ir shall be lawful tor the 
president of the United States to call forth the militia of such 
state OT states as may be necessary to suppress such combina- 
tions, and to cause the law to be duly executed." etc. "That 
whenever it may be ne o o onary in the judgment of the presi- 
dent to use the military force hereby directed to be called forth, 
the president shall forthwith, bv proclamation, command such 
insurgents to disperse," etc. It is well known that this act of 
17'.'"> was passed to meet the state of things then existing in 
particular sections of certain states, and to clothe the president 
with the power of the government to execute the laws. This 
act passed in review before the United States supreme court 
in 1S20, while chief justice Marshall presided, in the case of 
Houston vs. Moore, 5 Wharton, 15. Mr. Justice Johnston and 


Story delivered opinions. Mr. Justice Story said : " No doubt 
has been here breathed of the constitutionality of the provisions 
of the act of 1795, and they are believed to be, in all respects, 
within the legitimate authority of congress." The act gives 
the term insurrection a legislative definition, to-wit: That 
whenever the laws shall be opposed or the execution thereof 
obstructed in any state by combinations too powerful to be 
suppressed by the ordinary course of judicial proceedings. A 
law may be said to be opposed when it is not obeyed, or when 
one acts contrary to it or resists it either by physical means, by 
argument, or by other means. It is obstructed when its execu- 
tion is hindered by a combination of party spirit, ol force or 
otherwise. This recited act was passed to meet the state of 
things then existing in the interior of Pennsylvania, which was 
proclaimed, declared and adjudged to be an insunection, and 
reference has been made to it to ascertain the meaning of the term 
in question, as well as to show that the actoi January 29, 1870, 
under which the governor acted is substantially the same in pur- 
port. It provides "that the governor is hereby authorized 
whenever in his judgment the civil authorities in any county 
are unable to protect its citizens in the enjoyment of life and 
property to declare such county to be in a state of insurrection, 
and to call into active service the militia of the state to such an 
extent as may become necessary to suppress such insurrection, 
etc. The general assembly, by this act, has defined what facts 
should constitute an insurrection. Both acts seek to provide 
against combinations too powerful to be overcome by the 
ordinary course of law ; each act aims to remove the obstructions 
that may be interposed to the due execution of the law. Both 
laws were framed to cover the particular state of things then 
existing in the localities, for which they were intended, and in 
each the unlawful acts committed were of such a character 
as to render the life and property of the citizen insecure ; to 
loosen the bonds of society, and to obstruct the due execution 
ot the law. In the one case, by open resistance ; in the other, 
by means 6-icigeneris. It is clear to my mind from the evidence 


that life and property were insecure, that the very state of 
things contemplated by the Shoffner act existed in these 
counties, but in my opinion this act conferred on him no power 
in the matter of calling forth the militia, which he did not 
before possess under the constitution. It was a useless piece 
of legislation in that respect. It is assumed therefore as a 
postulate, that every officer upon whom devolves the ex- 
ercise of constitutional powers and duties must in the first 
instance for himself, determine their nature and extent, other- 
wise he would be a mere machine, acting only when he is acted 
upon. The governor of the state under the constitution, arti- 
cle 3, section 8, article 12, section 3, has an equal if not greater 
power than the president, and especially since it is a distinct 
grant of power to the executive department, the governor, 
from the very nature of the duty to be performed, must be the 
exclusive and final judge whenever a necessity exists for calling 
out the militia. This view of the question is fully sustained by 
chief justice Pearson in Kendall vs Inhabitants of Kingston, 5 
Mass. 524. In Martin vs. Mott, 12 Wheaton, 29, it was held 
" that the president of the United States in exercising his power 
of calling out the militia in certain cases was the exclusive and 
final judge when that exigency had arisen." Like every other 
officer, he is liable for any wilful abuse of his discretionary au- 
thority, but on principle, no good reason can be assigned why an 
executive officer should be held to stricter accountability in a ju- 
dicial tribunal like this, for a mistake in judgment, than a judi- 
cial officer, if he were the accused and indicted. But before dis- 
missing the question immediately under consideration, it may 
be well to look at it in the light of authority, as expressed in 
adjudged cases. I am also fully aware that as a rule of interpre- 
tation the term insurrection should receive the same meaning 
affixed to it in the books, but upon examination it will be found 
that this source affords very little aid on the subject, for neither 
the offence of treason nor insurrection seem to be well defined 
in the English elementary works and adjudged cases. This 
being so, the rule is scarcely binding. It must also be remem- 


bered that both these crimes are of a political nature, and the 
adjudged cases, as well as the legislation upon the subject, 
clearly indicate the political views entertained by those who 
administered the law. Besides, our constitution was intended 
for the people, and adopted by them as a plain instrument, 
easily to be understood, and without any technical distinctions. 
To proceed. For example, Hawkins says : " Those also who 
make an insurrection in order to redress a public grievance, 
whether it be a real or pretended one, and of their own author- 
ity attempt with force to redress it are said to levy war against 
the King, although they have no direct design against his per- 
son, inasmuch as they insolently invade his prerogative by at- 
tempting to do that by private authority which he by public 
justice ought to do, which manifestly tends to a downright 
rebellion ; or where great numbers by force attempt to remove 
certain persons from the King, or to lay violent hands on a 
privy councillor ; or to revenge themselves against a magistrate 
for executing his office, etc." This definition, with slight modi- 
fications, fits our case ; and if certain witnesses for the respon- 
dent are to be believed, it would require but little ingenuity 
to show that these combinations of men in their acts and pur- 
poses exhibited every element of the crime of treason against 
the government of the United States. The distinction between 
treason and insurrection is not easily made by definition. To 
view it in the light of authority, an insurrection is an open re- 
sistance to the lawful authority of the government by opposing 
a particular law or class of laws, without design wholly to re- 
nounce its authority, while treason is an open and avowed renun- 
ciation of the authority of the government with the view of 
changing its jurisdiction and rulers. An insurrection is not ne- 
cessarily treason, but every treason includes insurrection. The 
former is aimed at a particular law, measure or policy ; the latter 
is directed against the existence or life of the government itself. 
It may be assumed as judicially settled in this country, that any 
combination of men to resist by force the execution of any law, 
will be treasonable y but if the design is not to oppose the execu- 


tion of the law in all cases, but only in a particular case, suck 
as preventing the arrest of A B, it would only constitute a riot 
or murder if any one were killed. In treason there must be the 
overt act of levying war — the employment and exhibition of 
force, which are the indispensible elements of the crime. But 
the definition prescribes the quality of the evidence to ascertain 
the degree of the crime, rather than the quantity or manner of 
the force to be applied. It is a rule of evidence for the courts. 
For example : supposing a body of men to be in a position to 
execute their treasonable purpose, without the aid of military 
weapons or the employment of force, would it need the presence 
of such weapons or force to complete the crime ? On the trial of 
Aaron Burr for treason, Chief Justice Marshall in declaring his 
opinion, uses the following significant language : " No ad- 
judged case has, or it is believed can be produced from those 
books in which it has been laid down that war cannot be levied 
without the actual application of violence to external objects" 
If it be true that according to the books to constitute the crime 
of treason, or insurrection, there must be the " military array," 
" the posture of war," " the open resistance to constituted au- 
thority," the doctrine is more surprising than instructive, and 
the books need be revised and improved. For if it be so, it would 
only require unanimity of sentiment on part of the people to 
oppose the law or to establish a revolutionary government. It 
would be more effectual than to measure arms with the govern- 
ment. To illustrate: Supposing a state convention, relying 
on the almost unanimous consent of the people, should pass an 
ordinance contravening the authority of the general govern- 
ment in the state, and that all the United States officers 
in it, through fear, pressure of public sentiment or incli- 
nation, should omit to perform their duties, so that the 
employment of force or violence would be wholly unnecessary 
to accomplish the purpose. This example presents a case in 
which there is neither a levying of war nor a rising against 
constituted authority according to the books, and yet the law 
and the government are as effectually subverted as if 


" weapons " had been used to establish this kind of revolu- 
tionary government. The purpose is accomplished, in the 
language of Chief Justice Marshall, " without the application of 
violence to external objects," for the simple reason that the use 
of such violence was unnecessary, the object being effectuated 
by the force ot public opinion. Now, when we reflect that 
these offences are eminently crimes of motive, and of a political 
nature, as well as justifiable when the government or its 
laws are deemed oppressive and odious, it would be difficult 
to point out a more effectual mode of annulling the power ot 
the government, than the one indicated, without incurring the 
pains and penalties of treason. I don't believe the doctrine. 
In my judgment it would be undeveloped treason and insurrec- 
tion consummated. But let us admit that the act in question 
is unconstitutional, nevertheless the governor had the consti- 
tutional right and it was his sworn duty to pass upon its con- 
struction. His judgment, as evinced by his acts, was that it is 
constitutional. Our constitution provides that the executive, 
legislative and judicial functions of the government shall remain 
separate. By this division of governmental powers into sepa- 
rate departments it follows that the officers who are appointed 
to discharge the duties of these respective departments are free 
to act, within the limits of that instrument, and their particular 
branch, without control from any other, it they act fairly, hon- 
estly and within the line of their duty. It will readily be per- 
ceived that in a system of government in which powers are thus 
apportioned and distributed among the several departments, 
certain duties are imposed upon the several divisions, as well 
as upon the officers of each. It is in short a government of 
duties as well as powers, and whenever any officer is called 
upon to discharge such duty he is, at the same time 
and instant, also compelled to pass upon the question of 
constitutional construction. This decision may or may not 
be conclusive from the very nature and extent of the 
duty to be performed, and it may or may not be subjeet 
to review by another department. A law which is ipso 


facto void is a nonentity, and the executive, as well as every 
other officer, has an equal right with the legislature and the 
judiciary to construe the constitution, because the oath to sup- 
port that instrument is not peculiar to judges, but every officer 
is required to take it. It defines his powers, — an officer may 
be wrong in the construction of the law, but if he has acted 
honestly though erroneously, he will be protected, and the rule 
embraces the humblest magistrate as well as the highest official 
civilly as well as criminally. For if this protection were denied, 
men in accepting office, would shrink from the performance oi 
their necessary duties, in great emergencies, and thereby defeat 
the due discharge of the functions of government. Our insti- 
tutions, in theory, as well as in practice, seek a free and un- 
trammelled exercise of every duty, devolving upon constitu- 
tional officers, and hold them responsible only when they are 
guilty of gross misconduct or wilful corruption. The decision 
of every branch, as of every officer, is entitled to respect, and 
the judiciary should [pronounce a law unconstitutional only 
when the violation is self-evident, but in all cases of doubt it 
should pronounce in its favor. It is true that a law may pre- 
scribe a mere ministerial duty, though void, it should be exe- 
cuted by such ministerial officer on grounds of public conve- 
nience, unless it involves political consequences in contravention 
to the supreme law of the land. For the reasons stated I have 
concluded that the governor acted honestly when he declared 
these comities in a state of insurrection ; that his judgment is 
exclusive and final when such a necessity exists ; that there was 
an insurrection within the meaning of the act of assembly ; that 
the governor had a right to pass upon its constitutionality, and 
if his judgment was erroneous he acted honestly and for the 
public good, and therefore should be protected from criminal 
liability. And with this view of the case it is deemed unneces- 
sary to consider the fourth, seventh and eighth articles which 
contain mere matters of inducement properly belonging to the 
first and second articles, and probably to the sixth, on the prin- 
ciple that if he had a right to do what is well charged in the first 


and second articles, the gist of the charges which are criminal 
and impeachable in the fourth, seventh and eighth articles 
would follow as necessary incidents to the complete exercise of 
the powers of the former — and I don't mean by this to justify the 
illegal manner and desperate character of the force employed, but 
the conduct of the respondent must not be weighed in golden 
scales, and I have grave doubts whether he was circumscribed 
in the choice of means. For in the language of Lord Coke, 
" When the law granteth anything to any one, that also is 
granted without which the thing itself cannot be." The law 
always contemplates the beneficial execution of every power, 
and it grants whatever is necessary to execute it. A comman- 
der would cut a very sorry figure if he were required to 
suppress an insurrection without the power of arming or equip- 
ping men, with no means to pay them or facilities to arrest in- 

The third article will now briefly be considered. It charged 
the illegal arrest of Mr. Turner, in the county of Orange, — a 
county not declared in insurrection. There is some evidence 
that the respondent believed, and acted on that belief, that Mr. 
Turner " was at the bottom of all these troubles." Mr. Turner, 
on the other hand, positively denies, that " he was king of the 
Kuklux," or ever belonged to, or had any knowledge of these 
illegal organizations. He admits, however, that in a jocular 
conversation in his office, with three or four gentlemen, he was 
introduced as "king of the Kuklux." lie neither denied, nor 
admitted it, but remarked that that was "what Holden said." 
" It was in this way the thing came about." The senate, by 
its rulings, excluded every species of testimony tending to 
show the existence of these organizations, and their connec- 
tions outside of Alamance and Caswell counties. On principle 
this was wrong. The respondent was deprived of a full de- 
fence by this exclusion. It is admitted, that according to the 
evidence, the arrest of Mr. Turner was illegal, but there is 
enough to show that the respondent, honestly, though erro- 
neously, believed him to be, the head and front of this insurrec- 


tionary movement. It was an error of judgment which, under 
the circumstances, should excuse him from criminal liability. 
If the respondent believed him to be a member of this conspi- 
racy, which had manifested itself in the form of an insurrec- 
tion, and that he was principal actor in it, he had a right to 
proceed against him as an insurgent, in any county in the state, 
however remote he may have been from the scene of the in- 
surrectionary movement. The whole state was his jurisdic- 
tion as to insurgents. He was about twenty miles from the in- 
surrectionary district when arrested. His proximity and posi- 
tion were such, that had he been one of them, to enable him 
successfully to co-operate with them — he was constructively 
present. Upon the whole I am not fully satisfied, and must 
give to the respondent the benefit of the doubt. 

The fifth and sixth articles, charge the refusal to obey the 
writ of habeas corpus in the specified cases. The first question 
that presents itself, as a preliminary one, in considering the 
nature of the offences charged, is, does the constitution itself 
provide for military government as well as civil ? If this ques- 
tion is decided in the affirmative, it will follow as a corollary 
that the civil protection thrown around the one, by the con- 
stitution, cannot be made to apply to cases, coming within the 
limits of the former — both powers should be complete in them- 
selves, on the principle that " when a general power is given 
or duty enjoined, every particular power, necessary for the 
exercise of the one, or the performance of the other, is given 
by implication." If our constitution has granted the power of 
creating a military government, whenever the exigency may 
arise, for that purpose, then the following sections of Art. 1, of 
that instrument, cannot apply, and are meant to be regulated 
by the civil branch in a state of peace, and can have no applica- 
tion to a state of war, or insurrection, when the government, 
in order to suppress it, is, or should be, under martial law. 
The sections are as follows : 

Section 17. "No person ought to be taken, imprisoned, or 
disseized of his freehold, liberties or privileges, or outlawed or 


exiled, or in any manner deprived of his life, liberty or prop- 
erty but by the law of the land." 

Sec. 21. " The privilege of the writ of habeas corpus shall 
not be suspended." 

Sec. 24. " A well regulated militia being necessary to the 
security of a free state, the right of the people to keep and 
bear arms shall not be infringed : and as standing armies in 
time of peace are dangerous to liberty, they ought not to be 
kept up, and the military should be kept under strict subor- 
dination and governed by the civil power." 

The language of the seventeenth section is, substantially 
that of Magna Charta, and it was held that it did not apply 
to the military power of the English government. But the 
chief justice says, " The privilege of the wait of habeas corpus 
cannot be suspended." What good can the military avail 
when their action at every step may be embarrassed by this 
writ. It belongs and pertains exclusively to the judicial de- 
partment, and can be employed only when the judicial power 
has jurisdiction. But while this writ is an arm of the judicial 
power, and always effective in a state of peace, it cannot 
reach a party held by the military power, if it be true that it 
is separate and independent from the civil, for the reason 
among others, that the judiciary has not the means to prose- 
cute it, unless it infringe upon the rights and invade the 
functions entrusted to a distinct branch of the government, 
acting independently and under well defined powers. Even 
at common law, in case of military arrest, the judiciary 
had no jurisdiction to proceed by habeas corpus, and by 
parity of reasoning it has no authority, when all the powers 
of government are distinctly apportioned, as under our 
constitution — all equal in degree but not in power. The 
governor controls the militia as head of the executive and 
political department, and there is no single grant of power 
to the judiciary, by the constitution under which it may 
govern that officer, when he calls into service the militia,, 
embracing the whole power of the state ; and if the gov- 


ernor, as commander-in-chief, refuses to obey the writ, the 
judiciary is powerless, and without meaDS to enforce its 
decree. He necessarily acts under a law peculiar to his 
department, arising from the nature of the power to be ex- 
ercised, but which is nevertheless a necessary part of the law 
of the land, for its object is to be promotive of the public good 
in restoring peace and tranquility. In Luther vs. Borden, 7 
How., it is said, " unquestionably a state may use its military 
power to put down an armed insurrection too strong to be 
controlled by the civil authority." In the same opinion, it is 
also held, that a state may declare martial law, which, as I 
understand it, would be equivalent to an act of war, yet all 
war making power is denied to the states, severally, and 
belongs to the general government. This was the case, it 
will be remembered, of the Dorr rebellion. This decision was 
put on the ground that a " State may be said to be invaded 
when she is pressed on all sides by domestic enemies, and 
that an overruling necessity may be allowed for the time 
being to suspend an express provision of the constitu- 
tion." It must not be forgotten, however, in this connec- 
tion, that the legislature of Rhode Island, by its charter, 
had the power, and in pursuance of it, did declare martial 
law, and the doing of which, was recognized by the gov- 
ernment as " an overruling necessity." JSow the president, 
either on his own motion, or upon the application of the 
governor, in all cases of resistance to the laws of the United 
States, is empowered to send troops into the state, and the 
governor would in such cases, act as a subordinate to the 
president, who may order the executive, as well as militia 
officers, and their refusal to obey would be an offence against 
the laws of the United States. Houston vs. Moore, 5 Wheaton, 
page 15, and 12 Wheaton, Martin vs. Mott, 19. It appears 
that the governor did apply to the president for aid, and my 
first impression was, that he was acting under orders from the 
president, as commander of the militia of the Union, leaving 
to the governor the appointment of the officers and the training 


of the militia, but the letter of the respondent to the president 
of August 7th, 1870, rebuts it, and he appears to have acted 
on his own authority as governor. But I am relieved from pur- 
suing the inquiry further on this subject as to whether under 
the constitution there can be military government, even for a 
temporary purpose. The Chief Justice in ex parte Moore et al., 
64 N. C. Rep. said : " I declare my opinion to be, that the 
privilege of the writ of habeas corpus has not been suspended 
by the action of his excellency ; that the governor has power 
under the constitution and laws to declare a county to be in a 
state of insurrection, to take military possession, to order the 
arrest of all suspected persons, and to do all things to suppress 
the insurrection, but he has no power to disobey the writ of 
habeas corpus, or to order the trial of any citizen otherwise 
than by jury. According to the law of the land such action 
would be in excess of his power/' It necessarily follows, that 
if the "privilege of the writ" cannot be suspended under any 
circumstances that martial law, as understood in a legal sense, 
and recognized in legal precedents, cannot prevail in North 
Carolina, so that in times of civil commotion, the laws and the 
judicial tribunals can only be appealed to for relief, and if 
these are obstructed, the militia may be ordered out only to 
strengthen the civil authorities, to enforce their processes. 
There can be no courts martial ; no military commissions for the 
trial of citizens, and if the military make arrests, the imprisoned 
must be delivered to the proper tribunal for trial, according to 
the common law. Viewing it in the light of a cotemporaneous 
construction, our present constitution is eminently a peace instru- 
ment, for it contains no war powers that are available, and such 
was evidently the intention of its framers when they, by almost a 
unanimous vote, rejected the amendment, denying to the person 
restrained of his liberty to inquire into the lawfulness thereof, 
" in war," " insurrection " or " invasion." See proceedings of 
Constitutional Convention, 18GS. But the chief justice says 
" the governor may order the arrest of all suspected persons, 
and do all things to suppress the insurrection." The use of 


the word " order," it would seem might carry with it the 
meaning, that such suspected persons may be arrested without 
warrant ; and the power to arrest without warrant, might be 
said to embrace the power to detain as long as in the opinion 
of the governor, the public safety required it. For what avails 
the power to arrest, if the next moment the prisoners may be 
discharged by the judiciary for the want of evidence, when in 
truth the circumstances were such as to render powerless every 
effort to obtain the necessary proof to warrant a detentioD. 
To make arrests under such circumstances, would be the doing 
of a very useless thing, when at every step it could be thus 
embarrassed and delayed by the slow process of the courts, and 
in the end result in the discharge of the prisoner. Would not 
the commander-in-chief make but poor headway in suppressing 
the insurrection, if the insurgents could mock his authority by 
suing out the writ of habeas corpus. It is true that the military 
arm of the state in this emergency, would be so completely crip- 
pled, that the governor would have to stand idly by and see them 
gain strength and power, with no means to overcome them, 
other than to make orders of arrest one moment and jail de- 
liveries the next, until the United States should happily inter- 
vene to relieve the judicial sport. I have thus endeavored to 
present the respondent's case, in as strong a light as possible 
from his own standpoint, to show that his difficulties in a trying 
emergency are fully appreciated. But the disputed question, 
as it stands, is not one of fact or error of judgment, it is one ot 
law. The facts are fully admitted on both sides, as set forth in 
the certified opinion of the chief justice and the reply of the 
respondent of July 27th, 1870. The former says, " he (the 
governor) has no power to disobey the writ of habeas cor- 
jms." The latter, in his response says : " no one subscribes 
more thoroughly than I do to the great principles of habeas 
corpus and trial by jury. Except in extreme cases, in which 
beyond all question the safety of the state is the supreme 
law, these privileges of habeas corpus and trial by jury 
should be maintained," etc. " I do not see how I can re- 


store the civil authority until I suppress the insurrec- 
tion," etc. "It would be mockery in me to declare that 
the civil authority was unable to protect the citizens against the 
insurgents, and then turn the insurgents over to the civil 
authority." The motive of the respondent is evident, for he 
says, " the civil authority and the military are alike constitu- 
tional powers." The one begins where the other fails to answer 
the purpose of its creation. He is willing to assume the whole 
responsibility. He declines to obey the writ on the ground of 
an overruling necessity. He, too, had the right to put his own 
construction on the constitution in the first instance, and act 
accordingly until its provisions were expounded by a compe- 
tent tribunal, but thereafter he was legally and morally bound 
to receive his law from the court, and recede from his position. 
He was told in plain terms that to disobey was to override an 
express provision of the fundamental law. If the repondent 
had this right, other functionaries, who mry come after him, 
must have the same right, and there is an end of all good gov- 
ernment. If he can set aside one provision of the constitution 
to-day, another occupying the same position may set aside all 
of them to-morrow, and government becomes a contemptible 
sham. If he can substitute his own will as the supreme law of 
the land in one case, his successor may do it in all cases, and 
there is an end of representative government and civil liberty. 
To avoid such usurpations of authority constitutions are made, 
representing the collected will of the people who make them ; 
made to be observed by all as limitations upon them, as well as 
upon governments, but not so much as a measure of the rights 
of the people, as a rule of conduct for rulers. Looking at the 
matter in the light of history for the past ten years, may we 
not fully conclude that it was the intention of the framers of 
that instrument and the people who ratified it, to place the 
privilege of that inestimable writ beyond the power of legis- 
lative, executive or judicial control for all time, and without 
diminution? They had not forgotten, and it was yet 
fresh in their minds, that they had recently passed through a 


struggle, in which, the light of civil liberty was almost extin- 
guished amid the tumult of war. They solemnly resolved, that 
under no circumstances, shall this "one light" be put out again 
by their consent. Can any intention be clearer than this ? 
Shall we, then, on a solemn occasion like this, furnish men of 
opposite political views with a precedent argumentum ad 
hominem for future action, and then give them a pretext to 
invade our rights in the hour of defeat, and to say " you have 
set us the example," — you suspended the writ : you disobeyed 
it and justified it on the ground of an " overruling necessity." 
Shall we illustrate our principles by such an obnoxious and 
practical example, and thus add another precept to a cata- 
logue that is already abundantly full ? For these reasons, 
among many others, I was constrained, however painful the 
duty, to vote " guilty " on these two articles because the re- 
spondent, after having been informed in the most unequivocal 
language as to the law, "knowingly, deliberately ', wilfidly and 
unlawfully disobeyed it, with no mistake of fact to excuse 
him; no error of judgment to protect him, but holding the 
key to the position he boldly and calmly contemplates the 
probable consequence of his own acts. 


As a senator sworn in this behalf, I have to submit my judg- 
ment, arising from the facts and arguments presented to this 
court during the trial. 

It appears from the evidence before the court, that there 
were sundry violations of the law, in Alamance county, during 
the year 1868-'69, embracing two murders and numerous whip- 
pings. There were also two murders committed in Caswell 
county, and in both counties running through the same time, 
there were instances of barn burnings. The perpetrators of 
these outrages against the peace of the state, were, it appears, 


acting against each other, — were taking retaliatory steps. It 
is proved that there existed secret societies of various names — 
one composed almost entirely of blacks, and operating in the 
interest of a political party, and others composed of whites, 
and having also, perhaps, political objects. It is not by any 
means established that those secret organizations had any pur 
pose to subvert the government, but were rather organization, 
like vigilance committees, to punish those offenders against the 
law and against society who were not punished in the courts. 
It does not appear that there existed anything like a struggle 
between the races. Republican negroes were,[it is in evidence, 
treated in the same manner in Alamance*and Caswell as in 
other parts of the state, whenever their alleged crimes did not 
render them obnoxious to the communities in which they re- 
sided, and in general the two races were found there occupying 
much the same relation to each other as in other sections of the 
state. It is in evidence that the respondent issued frequent 
proclamations calling on the people of these counties to main- 
tain order, and that he subsequently proclaimed said counties 
in a state ot insurrection, that he on or about the 21st day of 
June, 1870, organized a military force by appointing Geo. W. 
Kirk colonel, who called for recruits in the following procla- 
mation, printed from a) document proven to have been in the 
handwriting of the respondent : 



" Rally, soldiers of the old N. C. 2d and 3d federal troops, 
" rally to the standard of your old commander. Your old com- 
* manderhas been commissioned to raise at once a regiment 
" of 6tate troops to aid in enforcing the laws and in putting 
" down disloyal midnight assassins. 

" The blood of your murdered countrymen, inhumanly 
" butchered for [opinion's sake, cries from the ground for ven- 


" geance. The horrible murders, and other atrocities com- 
" mitted by rebel K. K. K. and " southern chivalry " on grey 
" haired men and helpless women, call in thunder tones on all 
" loyal men to rally in defence of their state. The uplifted 
" hand of justice, X. C. 2nd and 3rd federal troops, must over- 
" take these outlaws" — under which proclamation he organized 
a regiment claiming to be state troops, over two hundred (200) 
of whom were from other states, and three hundred and ninety- 
nine (399) under the age ot twenty-one. These troops he 
distributed at several points, but chiefly in these two counties. 
It appears also that there was besides, and prior to the organi- 
zation of this force, a company of U. S. regulars in each of 
these counties under instructions to enforce the law, and amply 
sufficient to do so if there had been any resistance thereto. 
That these state troops proceeded to arrest divers persons 
named in the articles, and to detain them against their will — 
the persons being incarcerated and badly treated and in some 
instances subjected to torture. Some of these parties peti- 
tioned for and were granted the great writ of habeas corjyus 
which was served on the military officer having the petitioners 
in confinement, who refused to obey the writ. That the re- 
spondent sanctioned this refusal of his military subordinate, 
claiming that the writ of habeas corpus was suspended, that 
civil law had been subverted in these counties, and that he 
would use the military to restore it. That he ordered the 
arrest of Josiah Turner, jr., in Orange county, which had not 
been declared in insurrection, and by his officers, kept the said 
Turner a prisoner for several days. That he, without warrant 
of law, drew large sums of money from the treasury for the 
payment of these troops, and that he disregarded a writ of in- 
junction forbidding the paymaster to pay said troops, and ordered 
him to turn over the money in bis possession to another for the 
purpose of having it disbursed according to his unlawful orders 
before the second party be enjoined. <m this statement of 
facts, it is claimed by the managers that the respondent is 
guilty of the various charges contained in the articles. 


The respondent replies that lie was authorized by the act of 
assembly " to secure the better protection of life and property," 
ratified the 29th day of January, 1870, to declare the said 
counties in a state of insurrection ; that the courts were unequal 
to the duty of enforcing the law, and that he was obliged to 
resort to a military force to preserve order ; that the parties 
arrested were members of a secret organization, having for 
their object the overthrow of the government, and that they 
could not be otherwise dealt with than by the means and in 
the manner he used ; that the peace of the state demanded he 
should keep as military prisoners the persons arrested until the 
proper time arrived for surrendering them to the civil au- 
thorities, and claims that his military force was rightfully organ- 
ized as militia troops. It is to me perfectly apparent that a case 
is made out against respondent unless his defences thereto jus- 
tify him. 

I shall first examine the articles charging him with the 
commission of a high crime in declaring the counties in a 
state of insurrection. To my mind the authorities cited are 
conclusive that there can be no secret insurrection, that to 
constitute insurrection there must be open armed reisistance 
to the existing government by some of the persons owing al- 
legiance thereto. Now the facts are, in Caswell two men 
are murdered, and in Alamance two murders are committed 
and sundry persons of a low character are flogged. That 
these outrages were committed in secret, signifies only that the 
perpetrators thereof feared the law, rather tlian defied it, 
that so tar from defying civil law they sought to evade its ex- 
pected penalties by all the ruses their ingenuity could invent. 
If insurrection be a flagrant opposition to and defiance of the 
existing government, the course of those who committed the 
outrages has none of the " outward and visible" signs of insur- 
rection. These infractions of the law were committed by 
members of secret associations, but it does not appear that the 
objects of these associations were resistance to established 
government, and the commission of such acts as partake of 



the nature of insurrection. They did not undertakdlo s 
vert the existing government — the courts were not inter- 
fered with — process could at all times he served — persons ac- 
cused of crime could he tried and punished if a jury of their 
countrymen had found them guilty, and the forms of law at 

■/ Of/- 7 

least remained. It is true, the respondent claims that the 
spirit of our beneficent institutions had departed, and that jur 
always failed to convict men I ing to these organ 

tions. If that were so, (an assertion not sustained by evidence) 
the fault was in the mode of trial, and in an evidence of 
the inefficiency of human devices to attain a perfect admin- 
istration of justice. It is alleged that witnesses and jur 
would not do their duty — would perjure themselves, and the 
criminals would escape "unwhipped of justice." Yet if th 
was so, the very act which the respondent claims gave h: 
authority for his action, provides for the removal of the trial 
of these very offenders to other counties than those in vl 
the offence was committed. But to my mind, while the e: 
fence of such a state of society i ■ be deplored, and while it 
is to be regretted that the sacred institution of trial by jury 
should ever cease to operate as a wholesome check on cri 
yet this does not constitute ' -ection, nor does the com- 

mission of any number of offences, whether punished or not, 
having a different nature from insurrection, constitute t 
offence. The respondent hov. J on the " Shof 

act." Without entering into a di i of the constitution- 

ality of the act, and only char it as an uu\ : rant 

of discretionary power, perhaps beyond the scope of legisla- 
tion under the constitution of Nortl iina, I am of 0] 
that the respondent was, by the terms of the act itself, for* 
to exercise a proper discretion. Now, not regarding the 
subtle distinctions that the lea re argued at 
such length, a dispassionate c< ition of the facts fo 
me to view the conduct of the responded ing the result 
of a desire to execute the law. It is apparent to my mind 
that lie was actuated by motives that should not govern 



executive of a state. He did not have at heart the discharge 
ef the duties incident to his office, so much as other designs, 
which were totally incompatible with those duties. His in- 
terest — his object is plainly shown by the facts. Col. Clarke, 
it was arranged, was to have had charge of the military or- 
trizatkra, but this arrangement was set aside, because he 
was a man of too much character to answer the purposes of 
respondent, and was replaced by a person of notorious bad 

utation, imported into this state as a proper tool to ac- 
complish sinister purposes. To secure fitting material for tho 

culion of the vile project, an illegal force is raised, partly 

;a the lawless regions of Tennessee, and these troops well 
suited to obey such a leader in such an enterprise, are sent 
into a county where no insurrection exists — where no outrages 
are being committed — and where there is a strong force ot 
United States troops already quartered, under the pretext of 
suppressing insurrection — but with the real intent to control 
the election. Kow what was the conduct of this officer and 
his troops — as showing the intent of their commander, the 
respondenl i They arrested without warrant, without bail 
and on no charge, the political opponents of their comman- 
der ; they incarcerated these prisoners against whom there 

- not a particle of evidence and who were not even sus- 
pected of crime, in foul cells ; they broke up public meetings 
of peaceable citizens by the seizure of the best and most 
esteemed members of the community; they took forcible 
possession of the court house, and turned the officers of the 
law out of their appointed places of business ; they threatened 
to I 'inn the town oi Yancey ville, and resorted to all the means 
their ingenuity oould devise to precipitate a conflict between 
the citizens and Die soldiers — to exasperate them or to terrify 
thorn and prevent a free; expression of the popular will at the 
polls. Such was the object, such the means employed for 
its consummation ; and such the conduct of the respondent 
who, by a stroke of his pen, could have countermanded the 
orders that subverted civil liberty. 


The constitution ot North Carolina, art. 1, sec. 21, says Umt 
" the privilege of the writ of habeas corpus shall not be suspend- 
ed." The evidence under art. 5 is, that the respondent had in con- 
trol, under the guard of a military force, sundry citizens deprived 
of their liberties without due process of law; that they peti- 
tioned tor the writ, and the respondent, in his answer to art. 5 
of the articles ot impeachment, admits that said arrests and 
detention were approved by respondent as governor of North 
Carolina. No greater crime against the state exists, in my jm 
raent than this, save alone treason. 

This writ is the palladium of our liberties. Without it our 
lives would be at the mercy of our officers ; with it our boasted 
freedom is indeed a reality. Destroy its power and our cher- 
ished institutions are emasculated of their virtue. The be- 
neficient operations of this legacy gives to the humblest citizen 
an equality before his fellows with the most powerful officer. 
iso people are worthy of, or can maintain their independence 
who do not guard with a jealous care every avenue to this 
tower of their strength. The respondent, failing to remember 
its sanctity, admits that he undertook to render it inoperative. 
In this he is guilty, in my judgment, of a high crime. The 
governor is sworn to execute the law, not to make it nor to 
expound it. The troops which lie had in the field being ille- 
gally organized, the treasurer was enjoined from using public 
monevs in paying them off. The duty of the governor, as 
every citizen, is to obey the law, respect the order of the court. 
It' he evades the law, and defies the order of the court, who in 
all the land will give to the law a willing obedience ? Yet in 
this instance the respondent did evade the law, and by illegal 
means, caused to be withdrawn from the treasury the enjoined 
funds which he wished appropriated to the payment of his un- 
lawful soldiery ; calls into existence an illegally organized body 
of troops, uses them for an unlawful purpose, and violates the 
law to pay them for their services. Under this charge there 
can be no doubt of his guilt. The remaining charges relate to 


the arrest of citizens of Alamance and Caswell counties. Of 
the large number arrested there were none taken under war- 
rants properly made out, but they were seized at the instance 
and by direction of respondent with utter disregard of the 
provisions of the constitution. If there had been insur- 
rection and these men had engaged therein, his acts might 
have been lawful, but there was no insurrection and the 
capture and detention of these parties were without the 
sanction of the law. Among them were numbered some 
of the truest and most deserving citizens of North Car- 
olina ; these, with their neighbors, were arrested on the 
mere motion of his excellency without warrant, and as 
far as this court can discover, without a scintilla of evidence 
implicating them in any violation of the law. Had they en- 
:ed in any criminal undertaking, their apprehension might 
be excused ; but there is not even an insinuation that most of 
them had committed any offence known to the law. As for 
the members of the secret organizations shown to have existed 
in these counties, they do deserve harsh punishment from the 
hands of inexorable justice. Not even can the respondent 
entertain for them a greater aversion than myself. But these 
; o ieties were the fungus growth of the times, and in checking 
them it was criminal in the respondent to deprive innocent 
citizens of their dearest rights. The constitution and the laws 
are worth nothi i ; : i' they can be violated with impunity at the 
arbitrary will of one man. They are intended not merely to 
limit power in quiet times, but rather to prevent encroach- 
ments on the liberties of the people when " reason forsakes her 
throne, and passion rules the hour." 


There are periods in the history of all governments when 

the subjects have for a time been oppressed, that outcries of 

reform have arisen from the populace. It may also be truly 

I that when the demagogue, joining in the popular clamor, 


excites the prejudices of the people, the arrows of vengeance 
may be hurled against an innocent officer. The stream, which 
for a time is impeded, at last breaks down and rushes over the 
barriers, and carries every thing before it. When in this deluge, 
the ark itself is in danger, the patriot endeavors to confine the 
torrent within its proper banks and directs its impetuosity ; and, 
in so doing, may call upon himself the faults of the times, in- 
somuch that the most virtuous members of society in official 
place may be sacrificed. Such, in darker ages, was the "course 
of time." I have such confidence, however, in the rectitude 
of the intentions and of the staid judgment of the people of 
North Carolina, that they are not, in my opinion, to be censured 
for their selection of a victim ; for when they contend for a 
principle, they lose sight of the individual. Whatever may 
be the results of the impeachment of Governor Holdem the 
house of representatives, reflecting the popular will, were 
actuated from motives no less pure than at least a virtuous in- 
dignation at the supposition of his guilt. The impeachment 
of the governor was demanded by the voice of sovereignty in 
the state. Good men almost everywhere could not believe 
either that the constitution and laws of the state justified the 
perpetration of outrages upon the liberties of the people, or 
that the governor was actuated from misguided and ill-regu- 
lated public spirit. While they were willing to pass over al- 
most any crime in silence, which originated in an inordinate 
zeal for the good of the commonwealth, they could not believe 
that such flagitious crime, as has received his sanction and en- 
couragement, originated in anything save selfish capacity. 
Those members, in my opinion, who wished to reflect public 
opinion, could not avoid taking the action they did in this 
matter. In the trial of this cause, however, our character 
is materially changed. While the public has indicated its 
will in the matter through the house of representatives, the 
senate, sitting in its judicial character, can only look upon 
that will as desiring to be exercised to the extent of se- 
curing the application to this cause, of the principles and 


safeguards provided for every human being accused of crime, 
In exercising the power given the senate as a judicial tri- 
bunal, I think the idea suggested during the trial, that we 
were bound by no rules of law or evidence save that ot our 
own will, was erroneous. Being both judges and jurors, decid- 
ing both law and fact, we would necessarily fall into that 
class of whom Bacon says their office is "jus dicere " and not 
"jus dare." Let it never be said in North Carolina that this 
is not an alter of justice ! Let us in this, an unusual proceed- 
ing with ns, double the guards of justice so that in all tem- 
pests, party rage and party hate, may be kept from doing a 
demon's work by the irrefragible rules of law. With this 
view of our responsibility as a member of the court of im- 
peachment, I have endeavored to apply to this cause the same 
principles and safeguards in passing both upon the law and 
facts that I conceive to be provide 1 for every human being 
accused of crime. 

Articles 1st and 2d charges substantially, that the accused 
corruptly and wickedly declared the counties of Alamance and 
Caswell to be in a state of insurrection, whereas there was no 
insurrection ; that he took military possession of those coun- 
ties by armed bands of lawless and desperate men, organized 
without lawful authority ; and that he made unlawful arrests 
oi peaceable citizens, whom he imprisoned, beat, hung by the 
!;, and otherwise maltreated. 

Section Kith ot an act ratified the 10th of April, 1S69, reg- 
ulating proceedings oi' impeachment, enumerates impeacha- 
ble offences. Corruption or other misconduct in his official 
capacity, is therein declared lobe an impeachable offence; 
and tiie sixth item of this enumeration declares "any criminal 
matter, the conviction thereof would tend to bring his office 
into public contempt," to be an impeachable offence. 

The allegations are admitted as to the arrests without war- 
rant, and the taking military possession of those counties un- 
der a proclamation that these counties were in a state of in- 
surrection, but the wicked intent denied. An unauthorized 


arrest by an officer certainly makes the officer guilty of such 
criminal matter as expressed in section 16 of the act regula- 
ting* impeachment — the conviction thereof would tend to 
bring his office in public contempt. From those who have 
been elevated to positions of power and honor, the public ex- 
pect (and of right should expect) that dsvotion to law and 
order, and exemplary conduct, as would, even as an example, 
tend to restrain evil doers. Nothing would, in point of fai 
have so great a tendency to bring his office in public con- 
tempt than for the chief executive to become himself a viola- 
tor of law, and a co-worker with the wicked and disorderly to 
punish the innocent and unoffending. But to look at tin 
arrests only as they become illegal and assume the nature of 
crimes or misdemeanors, I conceive to be the duty of every 
member of the court. In the case of the arrest of the five 
Knights; viz: Darnel, Cobert and others (the investigation 
which ease, more perhaps than any thi g else, caused the 
passage of the /ailed* corpus act of Charles II.) I find the 
following quotation in the habeas corpus proceedings therein 
had, as the opinion of Chief Justice Markham to Edward IV : 
" The King cannot, arrest a man upon suspicion of felony i r 
treason as any of his subjects may." No verbal order of the 
King nor any under his sign, manuel or privy signet, was a 
command, said Seldon, " which the law would recognize as i .- 
ficient to detain any of his subjects ; a writ duly issued un 
the seal of a court, being the only language in which he could 
signify his will," and further, '• that even if the first commit- 
ment by the King's command were lawful, yet when a party 
had continued in prison for a reasonable time, he should be 
brought to answer; liberty being a thing so favored by the 
law that it will not suffer any man to remain in confinement 
for a longer time than of necessity he must." " If the King 
command me," said one of the judges under Henry IV, "to 
arrest a man, and I arrest him, he shall have an action of 
false imprisonment against me though it were done in the 
King's presence." 


All these authorities show that an unauthorized arrest sub- 
jects the officer to a criminal charge. They farther show that 
signature of some member of some branch of the judiciary, 
and that only, can impart vitality to any process in the hands 
of an officer which justifies him in making an arrest. 

1 the only reason the king was not regarded an offender 

nth the person whom he might order to make an arrest was, 

in. consequence of the fiction of law, "the king can do no 

wrong." In this country, however, the higher the officer in 

authority, the greater the offence. That these arrests were 

unauthorized is evident, for the reason that they were made in 

form and manner, as is expressly prohibited by section 17 of 

ilaration of rights, which says: " ISTo person ought to be 

taken, imprisoned or disseized, or outlawed, or in any manner 

rived of his life, liberty or property, but by the law of the 

1 ;" and section 15 provides " that general warrants, whereby 

icer or messenger may be commanded to search suspected 

es without evid ce of the act committed, or to seize any 

n or persons not named whose offence is not particularly 

•ribed and supported by evidence, are dangerous to liberty 

and ought not t< mted." There are certain axioms in our 

istitution, a disregard of which must necessarily have its 

in a mind bent on tl.e exercise of arbitrary power and 

subvei i liberties of the citizen. I could not vote 

to convict an; f "misconduct in office" for a failure, 

through inadveri • rve all the formalities of the law. 

There arc, however, rl tin self-evident principles in the 

mic la lie state, whose truth, scope and requirements 

ident at tirsl ' lit that no process of reasoning or 

demonstration can make it plainer. There arc, on the other 

id, que ad complicated that to construe 

them properly would require the application of that astuteness 

! irnine seldom found other than in the exercise of the 

' mind. A failun lace the same construction on 

■is that the courts mi . could not of itself be regarded 

cee ding from corruption. Inadvertence, however, can- 


not excuse the accused for disregarding an axiomatic provision 
of the organic law of the state. Section 15 of the Bill of Eights 
contains just such principles as, in my opinion, the breach of 
which must have grown out of corruption in office. I appre- 
hend that under this section, if any magistrate of the state were 
to issue a general warrant he would be guilty of a malfeasance 
in office as would render him unfit for the position, the tunc 
tions ot which he pretends to exercise. The order of the gov- 
ernor would be of less validity ; for while process signed by a mag- 
istrate who had no jurisdiction in the matter would protect the 
officer in the prudent execution of it, from a criminal prosecu- 
tion, an order issued by the governor could not. That he who 
enjoys the highest office within the gift of the people of the 
e, and orders the arrest of citizens in a way less formal 
than an arrest under a general warrant — not even giving the 
names of the persons — designating them by the term suspected 
is, when by an axiom of our state constitution, which it 
was his duty to support, such arrest would have been illegal if 
ordered by a member of the judiciary, is guilty of misconduct 
in office, it seems to me there can be no doubt. 

There is another point of view in which these arrests become 
illegal. Even criminals are entitled to protection from torture. 
An arrest under legal process for crime does not clothe the 
offiei r making the arrest with absolute power as to the treat- 
ment of the criminal. The assaulting some and hanging others 
to extort confessions, was an unwarranted as well as a cruel and 
brutal act. 

[l was given for law, by Senator Sumner, in his opinion at 
■ 251, 3d vol., that (among other things) the introduction 
oi arbitrary power was a high crime and misdemeanor. 

I understand an arbritrary exercise of power to be, to rule 
at will or discretion, rejecting the iixed rules of law. From 
all I was able to gather from the testimony, I have no hesitancy 
in saying the will of the respondent was the only law meted 
out to those counties during the time they were held by the 
state troops under Kirk. 


At page 838 of American Criminal Law, by Wharton, ex- 
tortion is denominated an offence against society, and is defined 
to be " the taking- of money by an officer by reason of his 
office ; either when none is due or where none is yet due.'' The 
testimony discloses the fact that one Burgen, an officer of the 
troops, released prisoners for money and brandy. The offence 
■of extortion finds a place among the outrages perpetrated by 
the troops during this military movement of the accused in 
those counties. 

Corruption or other misconduct in office is made an impeach- 
able offence by statute in this state. Wharton, on American 
Criminal Law, teaches that "if a public officer, intrusted with 
definite powers to he exercised for the benefit of the commu- 
nity, wickedly abuses or fraudulently exceeds them, lie is pun- 
ishable by indictment, though no injurious effects result to any 
individual from his conduct." This, that author denominates 
the offence of misconduct in office. The crime consists in the 
public example in perverting those powers to the purposes of 
fraud and wrong, which were committed to him as instruments 
of ben. fil to the citizen and of safety to public rights. Here 
1 propose to notice an interrogatory, put by the chief justice, at 
page 47G ol this trial. "Whether the executive is liable to 
impeachment for exceeding an act which is constitutional, 
should he falsely, corruptly and wickedly proclaim the state ol' 
things set out in the statute to exist, when, in truth, such a 
state "1' things did not exist V Under Wharton's definition of 
misconduct in cilice, such would he an impeachable offence. 
.Misconduct in office is expressly declared to he an impeachable 
offence, and the interrogatory put. in substance finds an answer 
in the definition of that offence. If misconduct in office as a 
criminal offence does not necessarily consist in exceeding; the 
powers conferred, but in perverting those powers to the pur- 
poses of oppression and wrong, it seems to me the executive 
would be guilty of misconduct in office were he falsely and 
corruptly, under the Shoffuer act. to proclaim an insurrection 
to exist when the courts were in the full and undisturbed exer- 


cise of their functions, and no insurrection did exist. Great 
responsibilities are necessarily associated with the grant of great 
powers; and if he, upon whom great powers have been con- 
ferred, chooses to abuse them from corrupt motives and for the 
accomplishment of ends foreign to the legitimate purposes of 
the law, he is certainly guilty of misconduct in office. If then, 
the citizens of Alamance and Caswell were, at the time of 
these arrests and wrongs perpetrated upon them, entitled to 
share in the immunities which I hope, as evil as the times may 
have been, every freeman of the state was entitled to, the ac- 
cused is guilty, at this stage of my enquiry, of such corruption 
and misconduct in office as should convict him on the 1st, 2d 
and -1th articles. 

The 3rd article charges the unlawful arrest of Josiah Turner. 
jr., in the county of Orange, by the procurement and order of 
the accused. The arrest was effected in a way unauthorized by 
law, and was attended by every aggrivating circumstance without 
a palliative. Here wc are presented with an instance of the 
wanton exercise of arbitrary power with but few ccpials in civ- 
ilized countries. This citizen had employed the press (at least 
apparently for the purpose of correcting the abuses of the times, 
though severe in its denunciations of official malfeasance,) i:. 
purported to fill the office to which Lord Baker assigns truth. 
'• Truth the daughter of time, not of authority, is constantly 
warning the community in what their interest consists, and 
that to protect, not to encroach upon these interests, all govern- 
ments are formed." The testimony to my mind disclosed the 
fact that shortly after an article appeared in the Sentinel con- 
taining a severe denunciation of the governor, the editor was 
arrested and deprived of his personal liberty for a period of 
eleven days and otherwise maltreated. It further discloses the 
fact that about the time said article appeared, the governor 
expressed the intention of arresting tin- said .Josiah Turner, jr. 
Orange had not been declared to be in a state of insurrection, 
and Turner accused of no crime. The defence then set up in 
justification of the arrests made in Alamance and Caswell could 


not apply licre. Here is an instance in which power, tenacious 
of retaining its authority, increased its exactions until the 
liberty of the citizen was disregarded. To acquit on this article 
would be to permit an officer to exercise these dangerous 
exactions of power with impunity. The accused seeks to throw 
all the responsibility on the troops, answering that they made 
the arrest without his order. It is admitted in the respondent's 
answer that when informed of the arrest he ordered his deten- 
tion in the counties declared to be insurgent counties. It is a 
well settled principle of law that an agency may be confirmed 
and established, and in tact created by a subsequent adoption 
and ratification. The case of Lane vs. Dudley, 2 Murph., 
dec-ides that if one person sell the horse of another and warrant 
his soundness, without the consent of the owner, who after- 
wards accepts the purchase money without any knowledge that 
the warranty had been made, the owner shall nevertheless be 
answerable on his warranty. This case rests on the idea that 
there can be a subsequent ratification of an act of an agent 
without even any knowledge of the acts of the agent. If then 
we apply this rule to the conduct of the accused, he must nec- 
essarily be responsible for the arrest of Turner. The case here 
is stronger than that decided in the case referred to. In that 
<-ase the acceptance of the money for which the horse was sold 
was a ratification of the act of the agent who made the war- 
ranty without the consent of the principal, or even his knowl- 
<■ Ige that such warranty had been made. Here the act of the 
illeg: I arrest of Turner was ratified by the accused in his 
ordering his detention with knowledge of the illegal arrest. 
As a general rule, however, the principal is not responsible for 
the criminal acts of the agent. There is an exception to this 
rule. Where the criminal acts of the agent are expressly com- 
manded, the principal then becomes responsible for them. I 
cannot see the difference, at least so far as the animus of the 
accused is concerned, in the arrest of Turner by Hnnnicutt, at 
the express command of the : jused, and the ratification of 
that arrest by ordering his detention after the illegal arrest 


ie to his knowledge. Suppose Turner had resisted the 
arrest and had been slain, and the accused, when informed of it, 
instead of punishing this officer had approved it by the act of 
ordering his troops to protect the officer who committed the 
deed from arrest, would he not have become an accessor}- to 
this foul murder ? He must with equal certainty be particess 
criminis of the illegal arrest of Turner as charged in article 3rd. 

Besides there is authority raising a strong* presumption of 
a criminal intent on the part of a principal in the employment 
of dangerous and mischievous persons as agents. He who 
rejects the powers of the civil law, or well disciplined 17. S. 
troops, commanded by men of character, and substitutes in 
their stead raw troops, controlled by ignorant and desperate 
men, (unauthorized by law,) was certainly actuated from some 
; and criminal motive. And, in my opinion, the use of 
such instruments at all shows an illegal purpose in view. 

If it were really so, as proclaimed by the governor, that 
Alamance and Caswell were in a state of insurrection, and 
that the effect of the governor's proclamation of that fact was 
to place every citizen of those counties ex lex, I cannot see 
how that would justify the arrest of Turner, a citizen of 
Orange. The defence set up by the accused that he only 
ordered his detention in those counties, certainly cannot avail 
the accused anything. I know of no better rule of argumen- 
tation — no better test by which the soundness of any propo- 
sition may be ascertained than by examining the effects pro- 
duced by the adoption of the proposed theory. What then 
would be the results of admitting that the accused was justi- 
fied in detaining Turner in the insurgent counties, so called, 
when he was not a citizen thereof? If he could detain one 
in that manner. I suppose numbers could not change the prin- 
ciple. All then that would be necessary to deprive any or 
all persons of the state, who might have incurred the dis- 
pleasure of the executive, of their absolute rights, personal 
liberty, &c, would be to declare some section of the state to 
be in insurrection and decoy the wanted victim into it. Thus 


the liberties of the people would bo placed at the entire con- 
trol of the executive. The stability and strength of the safe- 
guards by which the Carolinian has ever been taught to be- 
lieve he was protected, would depend upon the passion, tem- 
per or caprice of the executive. To such a doctrine I cannot 
subscribe — a rule of argumentation that leads to such de- 
plorable results, ought at once to be abandoned. I therefore 
vote guilty on article 8. 

Articles 5 and G charges, among other things, the refusal of 
George W. Kirk, by the order and command of the accused, 
to surrender citizens unlawfully held by him as prisoners to 
the civil authorities in obedience to the writ of habeas corpus. 

The constitution declares, in section 21st of the Bill of 
Rights, that the privilege of the writ of habeas corpus shall 
not lie suspended. There is no contingency upon the hap- 
pening of which, nor any emergency m which it can be sus- 
pended by state authority. Nor is it necessary that there 
should be. Ample ms ans are furnished in the federal constitu- 
tion for any emergency in a state. Sec. 4th, of article 4th of 
the constitution of the United States, is as follows : ' The 
United Slates shall guarantee to every state in this Union a 
republican form of government, and shall protect each of 
them against invasion, and on application of the legislature, 
or of the executive, (when the legislature cannot be con- 
vened) against domestic violence." Here' was the proper 
remedy for the accused to have employed in correcting every 
species of violence in the state which the courts could not 
reach. And I am unable to see how he who affects such admi- 
ration for and fidelity to that instrument as the accused could 
prole)-, the exercise of arbitrary power unauthorized anywhere, 
1<> tin,- exercise of powers afforded in the section referred to for 
the protection ot the states. There cannot be such a thing as 
martial law in North ( 'arolina, (set up by state authority) for the 
writ of habeas corpus cannot be suspended. And since there 
can he no bu sponsion ot the writ, there are none who are exempt 
train the penalties of attachment who disobey it. There is no 



private economical relation of life that can deprive either party 
to that relation of the privilege of that writ, nor is either party 
exempt from the penalties of attachment who disobeys it. An 
instance is laid down by Lord Bacon of an habeas corpus issuing 
against the hnsband in favor of the wife, and the court held 
that while the wife could not be removed from the hnsband, 
yet she was entitled to the writ in order to gain that freedom 
which would enable her to commence proceedings of divorce, 
and it was contempt in the husband not to obey the writ. 
The same author gives an instance in which a habeas corpus 
was directed against the Bishop of Dunham, who returned 
that he was invested with royal privileges as such, and on that 
mnt would not surrender the prisoner, for which lie was 
lined £4.000. Indeed, I believe it has been held in England 
and America, ever since the habeas corpus act of Charles II, 
to be in contempt of a court not to obey the writ by proper 
return. And no position in life exempts him who thus disre- 
gards the authority of the courts from the penalties of an 
attachment. Chief Justice Gascoigne ordered Prince Henry, 
afterwards King Henry V, to be carried to prison for con- 
tempt of court — such was the character which he then bore 
and the majestv of the laws which he sustained. And Hume 
relates no incident more to be admired by the patriot and 
more worthy the emulation of modern judges. Here we have 
authority proving that no one can pnt himself in contempt of 
the authority of the courts as he does who disobeys the writ 
of habeas ccrpus without incurring severe penalties. The hus- 
band could not do it when issued in favor of the wile. 
Bishops, under the claim of royal prerogative, could not 
exempt themselves from the penalties that liberty requires 
should be meted out to him who disregards the writ of habeas 
corpus. No officer in a republic ever enjoyed the prerogatives 
of King Henry V , while a prince. When he entered the court 
of chancery, the Lord Chancellor and keeper of the great seal 
arose from his wool sack and veiled himself while he received 
the prince, the bar standing. Yet such was the majesty of the 


law that bo, about whoso reception so much. formality was due, 
was not exempt from imprisonment for contempt of court. 
How, then, can it be that in this advanced age of civilization, 
a governor of a state can put himself in contempt of the highest 
judicial tribunal of the state with impunity? That he cannot 
do it without being guiltv of misconduct in office, is, it seems 
to me, an axiom of common sense. The arrest of the five 
knights which contributed largely to the passage of the habeas 
corpus act of Charles II, had the effect, not of establishing 
any new principle more than was already secured by magna 
charta, but that cut off the abuses by which the government's 
lust of power, and the servile subtlety of the Crown lawyers 
had impaired so fundamental a privilege. And if these abuses 
had not been thus lopped off possibly another effort like that of 
the insurgent barons atRunemeade would have been necessary 
to the protection of the personal liberty of the citizen. In my 
humble judgment, the conviction of the accused will tend to 
lop off the abuses by which the accused's lust of power in North 
Carolina had rendered inoperative the powers of the judiciary in 
the execution of the writ, of habeas corpus. And believing the 
attempted exercise of arbitrary power on his part was for the pur- 
pose of wrong and oppression instead of the protection of public 
rights, I am driven to the necessity of voting guilty on those 

Article VII charges the organization of an army of desperate 
men, and unlawful warrants made by the accused upon the 
treasurer of the state for large sums of money for the unlawful 
purpose of supporting tin's lawless band of armed men. 
The organization being unauthorized, money drawn from the 
treasurer for their support must also have been unautho- 
rized. I, therefore, believing the same illegal purpose was in 
view, vote guilty on Article YII. 

Artiele Y III charges that the Hon. Anllerson Mitchell, one 
of the superior court judges, issued writs of injunction which 
were served upon the treasurer and paymaster restraining 
them from paying money to the troops. That thereupon the 


accused caused the writ, and its objects to be thwarted by the 
removal of the paymaster, enjoined and appointing another. 
Thus the efforts of a tax-payer in behalf of himself and the 
tax-payers of the state, to have the legality of the expenditure 
of large sums of money for an illegal purpose, enquired into, 
were arrested. It is the duty of all persons, and especially 
officers, to obey process of this character until the matter in 
controversy has been determined by the exercise of the judi- 
cial mind, and he who disobeys it is in contempt of the au- 
thority of the court. It was claimed that the accused could 
not be enjoined, and that being the case he had the legal pow- 
er to thwart its purposes. I cannot see how the question of 
his power to do it, is of itself a defence. It is misconduct in 
office for an officer to use the powers conferred if used for the 
purposes of fraud and wrong, instead of the protection of pub- 
lic rights. The efforts of a tax-payer to enquire into the le- 
gality and justice of this wholesale expenditure of the public 
funds, were certainly commendable. And the officer who 
would interpose his powers to frustrate these noble ends, is 
certainly guilty of misconduct in office. The way to the 
courts was plain and easy. And the very fact that the accused 
resorted to artifice to prevent the passing upon these mat- 
ters by the courts argues a perversion of the powers given him, 
if inde ; , messed such power — so I vote guilty on the 

The conclusion I have reached in reference to the 1st, 2d 

and tides proceeded on the theory that the citizens of 

.1 Caswell were entitled to all the privileges of 

:. It now remains to be seen what was the legal 

proclamation of the accused declaring those 

state of insurrection. The position \ 

/ the authority of Judge Bond in the 

• proceedings in the case of B. G. Burgen, that 

the sword process of law to insurgents. But what if 

ere not insurgents ? That decision rests on 

the ide e act, the governor was the a 



and exclusive judge of that, and that a judge would have no 
right to question the truth of the governor's proclamation. 
This I believe was the course that case took. It seems to mo 
the only question here presented is, since the Shoffner act left 
a discretion with the judge — has allowed him to say when 
there is an insurrection — has this tribunal a right to enquire 
whether that proclamation was false. 

The language of the statute is " the governor is hereby au- 
thorized and empowered, whenever in his judgment, the civil 
authorities in any county are unable to protect its citizens in 
the enjoyment of life and property, to declare such county in 
a state of insurrection, and to call into active service the 
militia of the state," ifec. We have already seen the offence 
of misconduct in office is the perversion of the powers given 
an officer, for the purposes of fraud and wrong which were 
committed to him as instruments of benefit to the citizen and 
safety to public rights. If then the proclamation of insurrec- 
tion can never be questioned in an impeachment trial, how 
could an investigation ever be had into the conduct of a 
governor who should pervert the powers given him by that 
statute 2 

Section 9 th of article 3rd of the constitution, gives the gov- 
ernor, with the advice of the council of state, the power to con- 
vene the general assembly in extra session. Suppose these 
powers should be used for the purpose of annoyance to the 
members, would the governor not be guilty of misconduct in 
office? Or should he abuse the pardoning power or any other 
power, would he not be guilty of misconduct in office \ So 
under the act referred to. If the act gave a discretion to the 
governor, it does not follow that he cculd not abuse that discre- 
tion. He could not declare the counties to be in a state of 
insurrection when there was no insurrection. What then is 
insurrection 2 I am, with the lights before me, unable to find 
that insurrection is not treason. Whether insurrection is 
treason, becomes necessary to be known in this trial, lor the 
reason that our constitution has defined treason to consist only 


in levying war against the state or adhering to its enemies, <Szc. 

It all insurrections are treason, then it must necessarily 
follow that nothing less than a levying of war is an insurrec- 
tion. Wharton's American Criminal Law, I believe, enumerates 
seventeen offences against society, among which insurrection is 
not found. He also recognizes two offences against the gov- 
ernment, viz : treason and the violation of the neutrality laws. 
Then since a riot or rout is one grade in the scale of offences 
below insurrection, it must follow that insurrection is not an 
element of any of that class of offences against society. Then 
are we not to look to that class of offences against the govern- 
ment for insurrection ? In so doing it will be seen that though 
all treason is not insurrection, yet all insurrection is treason. 

Hallam, at page 574, says, "in the earlier ages of our law, 
the crime of high treason appears to have been of a vague and 
indefinite nature, determined only by such arbitrary construc- 
tion as the circumstances of each particular case might suggest. 
A petition was, however, presented to Edward the III, by Par- 
liament, requesting, among other things, that the King would, 
by his council and the noble and learned men of the land, 
declare what should be held treason ; whereupon a statute was 
passed defining treason ; and among other things, counterfeiting 
was made treason. Hallam, in commenting upon that statute 
says : " It is a strange conjunction of offences to make coun- 
terfeiting, which is for the sake of private fraud, rank among 
all that really endangers the established government, with con- 
spiracy and insurrection. Thus it appears that insurrection is 
the very essence of treason, else why would that author com- 
plain that counterfeiting was by that statute assigned a position 
in the scale of crime equal to insurrection when it was made 
treason. All tumultuous assemblages of persons that do not 
amount to levying war can only be a riot or rout. If these 
assemblages assume. such magnitude as to silence the courts, 
they may then become insurrections. This not being the case 
in those counties, the governor declared an insurrection to 
exist when there was none. And even if such were the case, 


I cannot see how that could have the effect of nullifying that 
section of the Bill of Eights, which declares that the privileges 
of the writ of liaheas corpus shall not be suspended. The 
maxim, salus populi supremer lex or necessities quod cogit, dc- 
fendit cannot justify the governor in the exercise of arbitrary 
power in a time of peace under the circumstances of this case. 
In all cases the officer or person claiming to act under the 
pressure of necessity, real or supposed acts at his peril. As 
necessity compels so necessity alone can justify it. It does not 
make legal what would otherwise be illegal. So that when the 
accused undertook to exercise the powers which necessity under 
circumstances requires, he did it at his peril. It is only real 
necessity that can justify it, and not that ideal necessity which 
is the daughter of inordinate ambition and an insatiate lust of 
power. Believing that no insurrection existed and no such 
pressure of circumstances as justified a resort to the exercise of 
arbitrary power, I cannot see how any one could vote other- 
wise than guilty on all the articles. To vote otherwise it seems 
to me, would be to turn the crimes of an individual into public 
guilt. I prefer to convert those offences which have thrown a 
transient shade upon our state government, into something 
that will reflect a permanent lustre upon the honor and justice 
of this commonwealth. 


It is not disputed that all the articles charge, by proper and 
sufficient amounts, impeachable offences. I do not propose 
to examine them in their order, or with any great particu- 
larity. Some of them, the third article for instance, may be 
easily disposed of. That Turner was arrested as charged, 
and not as alleged in the answer of the respondent, does not 
admit of a doubt. Nor can it be questioned that ho was ar- 
vested without cause and in open defiance and contempt of 


the law. Indeed the answer itself sufficiently shows quo 
anhno the arrest was made. 
Article IV charges the arrest of John Ken- and others in 

the county of Caswell, which had been declared in insurrec- 
tion. Articles V and VI charge the arrest, detention and 
imprisonment of persons iu the counties of Alamance and 
Caswell, by order of the respondent, and that he caused to be 
disregarded writs of / eorpus issued in their behalf try 

the chief justice of the state, and thus suspended the privilege 
of the writ. The facts are admitted. But it is said in behalf 
of the respondent, that having, under authority conferred 
upon him by the constitution and what is called the Shoffner 
act, declared the counties of Alamance and Caswell in insur- 
rection, he had the right to arrest the parties without process 
and by his military agents — that he had the right to detain 
them until in his judgment it was proper to surrender them 
to the civil authorities — that the court of impeachment cannot 
go behind respondent's proclamations to ascertain whether in 
fact there were insurrections in said counties or not ; and 
that, as it must be taken as a fact that insurrections did exist 
there, the privilege of the writ of hal corjyus was i/pso 
facto suspended in those localities, and the writ could not 

Had there been an insurrection in the counties named, ar- 
rests by a lawful military force, without process, would have 
been proper, of those engaged in open resistance to the laws — 
the military being used in such case in aid of the civil authority, 
and acting in subordination to it. The functions of the mili- 
tary, under such circumstances, may be likened to those of per- 
sons acting in aid of a peace officer, whose duty it is to part the 
combatants in an affray, and to arrest them on the spot. He 
may call upon the bystanders to assist him, and no process is 
necessary for his protection or theirs. But there was no such 
state of things in Alamance or Caswell. There was no time 
when civil process could not be obtained and executed by the 
proper officers of the law. The courts were open, the ci 


authorities were in the unobstructed exercise of their functions, 
and there was, in judgment of law, a state of peace. There 
is no justification or excuse for making the arrests in the mode 
resorted to. ~Nov is there any tor tire detention of the pris- 
oners in military custody. Legally, supposing their arrest 
proper, there could have been no means for detaining them one 
instant longer than was necessary to preler charges against 
them before a civil tribunal. The allegation on the part of the 
respondent, that his purpose was to deliver them to the civil 
authorities as soon as he could safely do so, is disproved by 
evidence which is absolutely overwhelming. It is established, 
as far as human testimony can establish anything, that his de- 
termination was, in defiance of law, to organize military tri- 
bunals for the trial of men, against some of whom suspicion 
was never breathed by any man but himself; and their deten- 
tion was to this end. The respondent could not have been 
ignorant that the trial and execution of any one of his prisoners, 
whether innocent or guilty, would have been murder in the 
eye of the law. The right of the parties to be delivered over 
to the civil authorities for examination, to the end that they 
might be discharged if innocent, or committed or bound over 
to appear before the proper tribunal, if sufficient cause was 
shown, was as sacred as the right of trial by jury, or any other 
right which belongs to the citizen. 

But it is said this court is bound to take the fact to be that 
11m 're was insurrection in the counties named, or at least such 
a stateof things as was in the contemplation of the legislature 
when it passed the Shoffner act. The doctrine goes to this 
extent, that, supposing a county to be in a state of profound 
peace, without a crime or criminal within its borders, if the 
governor chooses to declare it in insurrection, a court of im- 
peachment cannot try him and convict him of official miscon- 
duct. It is only necessary to state the proposition to show its 

Yet this doctrine is not so entirely without a show of rea- 
son to support it, as the other proposition of the counsel for 


the respondent, to wit : that the privilege of the writ of habeas 
cu rii lis was suspended in Alamance and Caswell by force of 
the executive proclamations declaring- them to be in a state 
of insurrection. The provision of the constitution is emphatic 
and without qualification : " The privilege of the writ of 
habeas corpus shall not be suspended." It is equivalent to 
saying that neither in peace nor in war shall the privilege of 
the writ be suspended. In the convention of 1868, which 
framed the constitution, Mr. Rodman, now a justice of the 
supreme court, moved to strike out the clause above cited, 
but his motion did not prevail. Subsequently, upon the third 
reading of the declaration of rights, he made the same motion 
and accompanied it with a motion to amend section 17 (now 
18) by adding thereto the following words : " The remedy 
shall not be suspended except in case of war, insurrection or 
invasion.''" The yeas and nays were ordered upon this mo- 
tion and amendment, and resulted in yeas G, nays 72 ; show- 
ing conclusively the sense ot the convention on this subject. 
Besides, in the case of Adolphus G. Moore, Chief Justice Pear- 
son declares his opinion to be that the privilege of the writ of 
habeas corpus was not suspended by the action of the governor, 
and that the governor had no power to disobey the writ, or to 
order the trial of any citizen otherwise than by jury. It is 
a significant fact that a copy of the opinion in that case was 
delivered to the respondent as early as the 23d of July, and 
that on the 3d of August, he wrote to Kirk that the court- 
martial for the trial of the prisoners would ; ' meet one day 
next week." The respondent's declaration that he was sus- 
tained in his action by the opinion of the chief justice, and 
his averment now to the same effect in his answer to article 
V, tends to cast suspicion upon the motives which goven 
him in all the conduct for which he stands impeached. Jt is 
impossible fur human reason to be so perverted and at the 
ae time sai thus to interpret tin; opinion in this re- 

i. \nv- d there ifieation 


making the arrests in the manner in which they were made. 
I go further. In many, if not most of the cases, there was no 
justification or excuse for making them at all. Take, for example, 
the case of Judge Kerr. Malice itself could not have inven- 
ted an excuse for his arrest and imprisonment, except the base 
and despicable one of political expediency. The detention of 
the prisoners and the refusal of respondent to obey the writs 
of habeas ■ were in violation of his known and sworn 

duty. Thus to make the military suspend the civil power is a 
crime without a parallel in American history. 

But it is urged as a circumstance favorable to the respondent, 
that in fact he did not cause any of the prisoners to be tried by 
a military court. It is not charged that he did so. It is diffi- 
cult, however, to perceive how this helps his case. That he 
proposed so to try them ; that he persisted in his purpose after 
its illegality was most clearly declared ; that he partially 
ariized his court ; that, as late as August 7, he appealed to the 
ssident of the United States to withold aid and support from 
the judiciary of the United States ; that he abandoned hispur- 
e only when the attorney general of the United States 
a '.vice the president followed) pointedly rebuked him ; 
I even then he sought to oust the jurisdiction of the federal 
jud idmitting of no dispute. It is beyond contro- 

li " he Wrote to th( resident 

kii • the suspension of the ; je of the writ of'/ . 

,. the end that " cri iglit be arrested and tried 

to the close of the dismal 
nt on mischief." 
In ties that the 

■ re many of them of the 

' re from 

" that the said men were 

tely before the organ- 

izati id militia, and if any of them were at the time of 

the same 
, I | of the 



avowment is peculiar. " At and immediately before " seems 
to imply that respondent was aware that they had not for any 
appreciable time been citizens of the state. The proof is that 
many ot them were citizens ot Tennessee, and there is no proof 
that they had become citizens of North Carolina. That re- 
spondent knew they were from Tennessee, and also knew that 
some of them were desperate and lawless is sufficiently appa 
rent. In addition to this the force was not only unlawful to a 
great extent in the materials of which it was composed, but as 
a whole it was unlawfully raised and organized. It was not 
militia in any sense of the word, and was not authorized by the 
constitution, or colorably by any law. It follows that respon- 
dent's warrants upon the treasurer for the payment of this 
force were made without lawful authority. 

As to the eighth article, it is only necessary to say that the 
evidence sustains the allegations, and establishes official mis- 
conduct on the part of the respondent, in that, in his official 
capacity he caused to be evaded and disregarded the proofs of 
a court of competent jurisdiction. 

Much of what has been said is applicable to the charges con- 
tained in the first and second articles. One of the charges in 
each of those articles is, that respondent declared the counties 
of Alamance and Caswell in a state of insurrection, whereas 
he well knew there was no insurrection in either of them. 
The word " insurrection " as used in the constitution hae a 
well settled meaning — a meaning which, if not established by 
judicial decision is well understood by every scholar and every 
jurist, and it is not competent for any legislature to declare 
that to be insurrection which is not insurrection within the 
meaning of the constitution. There was no insurrection in 
either of said counties, and I am fully satisfied by the evidence 
that none was intended. That there were conspiracies is cer- 
tain, but none of them were for the purpose of making insur- 
rection. It is to be presumed that the respondent knew the 
state of things in those counties as we know it now. But he 
says lie is justified in what he did by the Shoffner act. That 


act undertook to authorize him to declare a county in insurrec- 
tion whenever in his judgment the civil authorities were unable 
to protect its citizens in the enjoyment of life and property. 
This act presents the only difficulty in the case and furnishes 
the respondent his only ground ot defence. It is not for a 
j udicial tribunal to declare that the purpose of the legislature 
is to violate the constitution, but it is clear to my mind that 
the act undertook to vest in the respondent a power which, by 
the constitution, he is not permitted to exercise. In other words, 
I hold that the act was unconstitutional and void. The 
question then is, whether the respondent is impeachable for ex- 
ercising the discretion given him by an unconstitutional act, 
provided he received it in good faith, and without dishonest 
and corrupt motives. I am free to say I think he is not. Then 
the only inquiry is, whether he did exercise that discretion hona 
fide. There is much evidence bearing upon this question. I 
have already referred to some of it, and stated the inferences 
which are to be legitimately drawn from it. I do not think 
the evidence is sufficient, however, to establish the tact that the 
respondent corruptly declared the county of Alamance in in- 
surrection ; and it that was all the article charged, I should 
have voted u not guilty" upon that article. More than this : 
had the respondent done only what was allowable under the 
Shofther act, I should have voted his acquittal. It is not neces- 
sary, for the explanation of my views, that I should say any- 
thing about the proclamation as to Caswell. 

But these articles charge iurther : 1st, that the respondent 
sent an Unlawful military force into said counties and took pos- 
session of them ; 2d, that this torce, by his order, made many 
arrests of peaceable and law-abiding citizens without process ; 
3d, that he detained, imprisoned and maltreated a large num- 
ber of persons, naming them. I consider the charge of cor- 
ruptly issuing the proclamations as inducement to the other 
allegations, or at most, as one of several specifications of crime 
contained in the articles. I am very strongly inclined to the 
opinion, that no formal conclusion is necessary in articles of im- 


peaehment, as in the ease in indictments. Holding, therefore, 
as I do, that the agency employed by the respondent was alto- 
gether unlawful, I have no question as to his responsibility for 
whatever was done by it. It follows, if these views are cor- 
rect, that he is guilty under these articles, as he is, in my judg- 
ment, under all the others. 

In conclusion, I avail myself of the opportunity to express 
my abhorrence ot the secret political societies which existed in 
Alamance, and which, I am convinced, exist there no longer. 
"Without undertaking to say what their original purposes and 
objects were, it is certain that they became mischievous in the 
extreme. They committed many most heinous crimes. They 
did net, so far as we know, assassinate Stephens, but they mur- 
dered Outlaw and probably Puryear. They whipped and 
scourged many for actual or pretended offences, and some out 
of a spirit ot wantonness or revenge. They established in 
Alamance a reign of terror. They supplied, as far as they 
could supply, pretexts lor the oppression of our people, to those 
who sought them. They disgraced us in our own eyes and in 
the eyes of the world. If any man, who loves North Carolina, 
shall hereafter write the history of these times, his cheeks will 
burn with shame, when he recounts the atrocities committed 
in Alamance. 

In all this lawlessness, whether in Alamance or Caswell, I 
could find a justification or excuse for the lawless acts of the 
respondent, I would most cheerfully say so. One crime cannot 
be set off* against another. However much turbulent and mis- 
guided men may have taken the law into their own hands, he 
was not at liberty to do so. They were citizens, and were en- 
titled to the benefit of those provisions of the constitution, 
which protected even the guilty from arrest, imprisonment, 
trial and punishment, otherwise than by the law of the land. 

Notes — 1. The case of the Earl of Lancaster (Edward II 
and III,) about which there was some controversy, was in point 
for the purpose for which it was cited by one ot the counsel for 
the managers. It is true that Mr. Hume (vol. 1, page 533) 


says: "all tlie attainders, als.o, which had passed against the 
Earl of Lancaster and his adherents, when the chance of war 
was turned against them, were easily reversed, during the 
triumphs of their party." This was cited by one of the coun- 
sel for the respondent, and the inference was drawn (a fair 
one) that the attainders were reversed, not because they were 
against law, but because the party of Lancaster was in the 
ascendant. But the historian is not to be so understood. He 
says elsewhere (page 518, same vol.) as follows : " In those vio- 
lent times, the laws were so much neglected, on both sides, that 
even where they might, without any sensible inconvenience, 
have been observed, the conquerors deemed it unnecessary to 
pay any regard to them. Lancaster, who was guilty of open 
rebellion, and was taken in arms against his sovereign, instead 
of being tried by the laws of his country, which pronounced 
the sentence of death against him, was condemned by a court 
martial, and led to execution." 

2. It will be seen by reference to Judge Battle's Habeas 
Corpus Oases, pages 101 and 102, that upon the question of 
the legality of the arrests made by the respondent, I am in 
accord with Judge Brooks. 


I have read, with much attention, the paper containing 
Judge Warren's reasons for his vote upon the articles of im- 
peachment, prepared by the house of representatives against 
Gov. Holden, I approve of, and adopt them as my own. 




^_ [tiafiufip 

r X D EX 


J.-JJN IS JJJ .^V. . j 

qooiJ o'A-vTA 


1 ♦ 


Debate on admission of opinion of witms- us eyic^nce of - - 1815 
Address of committee of house through mil welch to, senate, ANXOOJi- 

cxng impeachment, and asking senate to take orders in the premises 7 

. Amended answ.-r to Article YI.I, as amended. - - - - 100 
Amendment to Article YH, . - - -.,.,- - - - 61 
Answer of the respondent; Wiljiam W. Holdcn, to articles of im- 
peachment, - - - 29 
Answer to- Article VIII, as amended. : - - ■ . - 100 
Arguments— • 

Final, , , . . 

of Mr., lioyden. - - - - ■- - - - . - 2317 

Of Mr. Bragg, - - 2439 

0102 %$fc§flfrW\ itmd J ■ l v.;-/ - " ; " > " 2271 
H. ; .Qf Mr. Smith, -. >u - - -.--■-- - . 236*7 

On admission of proof of existence, of Kuklux Klan. fl 

Of Mr. Loyden, - -^ - .- - - - - 315, 443 

...,; (,f Mr - $ffi® ,-,.', ■ ■■ - :. - "• " " 355 
Mil . Of Mr. Conigland. - - ,, - M - (j ,. jh ... - - - - 337 

• Of Mr. Oralxam,. - . - ,; - - •. ; - - 302,403 
! - 0f Mr - Merrim^ - - -. - - - - - 319 

Of Mr. Smith, - -.- -•- - - - ,369,390 


of Mr. Conigland for respondent, -, 1039 

• Of Mr. Manager Sparrow, - - 105 

< ;"; A,A,N-T YY.LUAM W. HoLDEN, GOVERNOR- - - - - 9 

Vote on same — 

: - . ■ hi- I ' 

Card of James E. Boyd — 

Debate on admission in evidence of ,., . - - , - 1653,1667 

Character of men alleged to have been outraged — ... 

ii).: ;: nn nO 

Debate on admission of proof of ~, - ... 502 


Debate on admission of, as evidence, 1624 


ii n iNRBJfex. 


Cc<Nmttm¥«Rm:in'i:imveK<w<#Ai^sl^ — 


Oil >nckdis«k>« no f < xf< UWffilfflitf feiftSSn S>efeBW#8eiP °Mf fit. ii"^ c? 1 \^n¥a.s 

evddaitaei-e, - - " - " - ' • - - " - " . * . " . " - t1J24 

(")*>naiiliask3h>ofo<1q«tot^wftftiQf(,KK>i%^ , W^^a§ v M 1 ^?ee. " - 79 $)8 


niBntjirf'(|i'rim)tnftre)^, - - " - " - " - * - " - • " - " - * 'f%3 

isietvasievidfehuft,x', - - - - - - - - " - - . " - ". " - 2 3$;9 


oMrt»tatantae^i{irtw<ffi%s, - - - - - - - - - . " - 9 ^g 


owbtojgM, " - " - " - " - " - " - " - * - " - " - ^9>TV2 

0«iadriiiim«»ip^lfewKlWfi-6>f.)^jEj.:BRB4tl, "- "- "- 1 f$S, 1 %i? 
nnmreeaHddCgsswflill, -- -- -: -: -. -■. "- ". 1 ?i9o 

jipyviionfct>f>ftit<l)Opp^, - - - - " - " - " - " - - . " . ■ . 9 pjfo 
Orti Eiddiirisdoni iof, fe«i<Jd©fl§et<l< » sbflWW t <f FWKr ^8%Pp$8e°of A i$a- 

raannei'bVvTi'pp|jaifeJi>i)M. -- "- "- -- "- "- ". ". 2 ^|.°, 
0*iadttibiskwuK>f>f1*«H^ 2 %% 

i\k\aMAfi\^\()&i\im^^f^M99^^ v ^}^^^, '- -. '- l l9§5 
OHiwdtaisBitajcrftimtt^ l }^h 

Gfeaafflnfigfoqi oftlf ii«mi wdftlfc*i?»ilmlN»fr ^fHft Wf?}ftJjHf?f$- %2RftJ6ii, 

fto nfl ii r i m i fil li faff fttofcilft ofr ttWWff \Y°fiJt)ft |g W^Wc, '■ W%\ 

Ob (cfcaiiw*™* m v%e^ «t s«m*» Straws^! to ^ n % Wi?wte $ 

the court, * -• -- -- "- 7N 

On motion to m\wn\\ ttgfetfe M\\v\* $ NtyWflV-hfflWtf •. ■- : ft« 

On motion to plaey Ofiltt«ttft S-. ItWWlf ffl WAftm^'. - - ?ift 
Declarations ok Kihk'i* TrooP8= 

Debate on admission of proof fit' : : : : : $$ 



Documentary Evidence — Pace. 

PartV of^mes ijHBTO-pnblished in Sentinel, dated July 20, 1870, 1620 

Ca9fl r S^eiW£h£-$e^ 
CoM ^^.|j§5^!by the Stephens toothers, dated June 2, 1870, - - 2133 

FY-oW'MVHVenTW. R. Albright, - 1911 

Prlffi i eJp?ff.^£ n ^SB8#-t^ : ^|rfeSdent, dated-May-4, 1870, - - -llfllll 

&eli! o'J'B^Pi'l&PjSiJe^'aS'tt^feiifej afte^nSMteh^lfiSO^ppoiHt- 1159 
Fronffitf. ¥r$fe M\k M l ^mm&}W&t<k\t^Mni*)imm", - - llEBW 
Fi'offi'^'Pri^^^e^^^E^W^Wtt^yMl 3K#reh «, 1870, - -11KB9 
Fto , ft. D, X. P Ml^W e an^© , ffiK^ 1 ^' l Pesda^iAlahrlir8fer8fiOe to - 11 03 

Iffifll ol^iflaii^^'^WnM^eV^m^Feb^t^yt^tlglpo.referen.-c' -to 1133 
Fro^ , tffiiflei?fe i Boy^lAteltt»tt 1 Wily ,l >S»J fbtepaty 28, 1870, - - - - 1 683*3 
F&W^pWeft l!Mpt d 'tf^^a-ni%lffdted May 7, 1870, - - - HH8B3 
FfenVH^sp^ato^fr^J'te^.Ala^n^gd*^ ifc$0,7, 1870, - - 1M637 
rfd1!HH-e^iia^^^^riKvtei^t^t^8ft*cR,^8W0, - - - 1MQ6 

rltM^i^WJ^U^^^M^dii^e^UwWiinAtsv), - - na*o 

FS^e^i»aetey < ^A?ffl*^»,e4adrti*ifoBcio l&nflfiGttp of - 1 1 64 
p aWafrSHS , eHs^ih, t flaaBdApAll! l M, 1 M7b» reference to condition of 1142 

Deb'fcn nilmfts%n> #%aWep"l 22, 1 870, . - . - - - . . - - 1 Hi 2 

FW l ^/ > A. il i1Hn1tn , o ,1 tB f r%'^ndent-, in reference to condition of- 1141 
F MlrJin^s 1 iil^H U dklfeaMaS?< J l#P87dn reference to condition of 1143 

Con#Vi'o1i i BA¥JYfiynT 1 r^o¥<n- l«i, 1870, .- .- .- -. .- «9g 8 

^8ffea4&^fi&iMe^lfl^%SHtineh -- -- - - 21852 

LnT^Jfttphda published in the Sentinel, ...... 2 183 

"^?i5ni {S cTerk of superior court of Caswell county to respondent, 

F ft ) %f6tte°4o s HflStaffy' bf ll e1ei¥sQ«5M;lda!tedn^t^osfe2^pna36t, 745 

FrJnV'$eorg , e'^tMan4^ 1878, Sffi 

FronVY^? W^^H^m^^ 883 
FrBm" r^oWde^P^^r*Qff°^>S^M«ia^(^ftaift^^ ttbnlttyv, 

F MM!$tp&'2&,te70 , , t ' rk ,lf superior court of jCaswell county, 746 

Fron^^espHnflgnirV^oi. Kirk, dated July 17, 1870, - - - 288) 

F'roft^pV^mH^ - - 2£& 

F^^r^ffi^##d3f. L ^rl^dtt^^l^^,m0, - - 2B5S 

F'jW r 1 fe]JHn«telt t t < 'ltdri: ftiigh &'t94n£u]ff a ftH ttfigust 29, -1870,- 22ffi 

r*rW rclpWaem 1 fa j&fflbeSM So^Kis/feteA JJig-oht f$, HSB7H), ffift 

from' r^BfttePt to' TMlRKfi Of' ti¥R^8Sli«teAAK)Hi-li^%ufal77), 1 66 

Fl ](glftf e8 P°ndent to Preside^ of .United States, dated August ?, 213 

Message^— % - - - - 2ln 

M fft Wspmulent to General Assembly, dated December 16, 1869, 1150 

81 f SipafidgBt ttP G*trer'K? ] A&sSeHlfttyy ddftfttt a" torafcdiee2} 0,8 78/59, 1 150 

^to^oW'a-amfe^n 11 ^' 1 Assembly, dated November 22, 1870, - 1119 

N^^ap*#l!ic1# Reference to conduct of Col-. Kirk's troops, - 1119 

Sa^Wlfflndlrtiflten fey r$|KSWt&fc,' conduct of I !oL Kirk's troops, - 134 
Oath of office taken by respondent, - 134 

\y INDEX. 

Oath of the White Brotherhood, - - • 124'.». 1584, 2228 

Oifiiiius— . - 

- Appointing Major*. Sx B! Ne;i.thery, paymaster 1 , dated 'September 

3. 1870, pa .- o'J 145 

• Authorizing Col. G-. W. Kirk to organize .tiroorft, dated June 2fl ; iffi70, 139 
it.t f i - Ortleif dfetfiil-m^' A: DtJ .J.enkinK'tjo act m paynfos&n/'ulatprU.Iuljt'1 1, 

J, M 7 ' > ,- ' ' '" - ... '• ' : •■''.- ■ -.:■ I - 19! -'• "- - 139 

Ball - R('Uethig',Col. Kirl; fatal dnty^lated September Sdf[l&J<3fl - - 148 
<:■ ;i • Pemovl«4 Cnp't. tonkins.. a^ paymaster, dated SepbnnbeiUBniflftD, 144 
StJtl • Specifying dntiiM df eerUdn' slatf ufH0ei^o^r.«sp6indi<*nt; dated 

>i, .; Augusta In - 8 8 7w, ■ - - -..-'.-,!{ iiu.j'! - 141 

88 II - To Capt.dtafrisaii/tni.tsRue provisions to. JYuuilies»of enlisted men, 
£801 • dated July -9, 187Q0?8I t t'2-^[aL-b'ji«h .L^-oH. .3 xomal mo'i'4 ■ 148 
Vliff • To C61, r DfrrigM$.t».inbt,as ■-adjutant generabin 'absence of Adjutant 
9MI - (tenerid'Fi;anii-,.idnUKV.Ii(ly^!i,.lH7d, .1 3 oi lirabnoqag-i rno-iT - 141 
OoII • To CobTBouglasitouproc-Jed as fodwsrJ of (d&spfeteUvss Cftei Yniisri-y- 
i ill - viHknkl^-hbAmgMsfll^d^ti, - -■ mv - : . 143 

loQi>ddrtoCol. ©joughisito rm,osfae« iitoAseifidet tJrodps'<<f-4'iol». Kirk. 
S:Ml • dated July 13, 1870, .... . . -8-tiaft . 141 

IHI • To Col. Khd^-o disband his troops, dated Au^stoti). Is7<>,. - 140,147 

loT© CoLnKirhdo lmifiterhis men for pay, dated.. August. 1.'!,' 187U. 143 

f^^f I - To Col. Kirk torendezvoUfj'Mt.C'I.mpanv Sliops.vhdy 8, 1870, - 140 

- To Col. Kirk to parole prisoners, etc, dated Aumi.^ 14; 187A • 173 
P8I£' - To Col. Kirk to take possession ■ of pnldic luiildingti; dated Ji*IyM3, 

1870, — .-•.liilio, 974 

JfPd;C^'.Kti«kt ftgttUtfffi oveV'iiif^p^r^y-iiav Major;!!.-] ry, dated Sept. 
«*•? ,0?8f, ,lS7d»j!ij-i.'A h - ..'.'. (b . - . \o'i ui . 1 4 < \ 

- To Maji r^thwyltdnbitf: iM^P'JJeffry'^MOOo; ^dated-September 5, 
,0781870,7!. ' - ii // -I, . . ia!O.I». . . . 14 .-) 
,#«:ttfficeWd» aroimiitdor tardspdute-d Ali£iisfc!ld»18-70.;- »' ui ■■''• - 14 1 

9fcY - Proceedings of-publrc meeting "of citizuns.'of Alamance- county, - 99 

882 - Proceedings in mjiwiepM>ii -mt&Wperio* <lnurt of Iredell e»inrt.y, to 

£8S - restrain pitym r enl-of state i:>viop}5, "A So'.) oJ tnal mi 1. 21 V 

Sf&OCL-AMATIONS — . f8l 08 

fllS .0(0? W^ohdeiitAdatHl.MetobcV. It, irJJSfcS,. noJ - Jnabmwpm rao'i'i . 110 ■ 

Qdl ,iO£i-e^p'ori(la«K AaliWl November 47,18^, - - {sot raw . m 

,\1 (f-POSpniiAottt; 'da*** April i>&], £ - - 111 

nil' -Of respondent, -dated October 2^, 18«9, - t 0V8I . 113 

Of respondent, declaring county of Alamance in insuYWM.iom*'- 

or.ff ,e98isuftfl Msboha^SWJaiJ «'{Idni - A faienaD oiJinoba 10. 135 

of)r«j4p^l'^trf^te>l,JTiniftU;,/i,t;Ti>. ' UweiiaQ oi. . pea . 1137 
win -Of respondent, -declaring county of Caswell in insnrreHion. issued 

, <jitdy «;»Il^W),^ ) - - - - • "-'-■ - - - 13SJ 

*8[ -Protest of- Governor- Worth, • ■ ' r -'»i v/i/i^aJ ooiho to u'v.O . lln : 



Rallying proclamation of Col. Kirk, - - - 283 

Shoffner bill, as originally introduced, - 990 

Telegrams — 

Fvor.i Burgen to M. N". Hunnicutt, dated 5, - 1003 

From Burgen to respondent, dated July 10, 1870. - - 1004 

From Capt. Hancock to Lt. Col. Burgen, da:ed August 5, 1870. 1008 

From Col. Clarke to Josiah Turner, jr., dated 15, - - - 1007 

From Josiah Turner, jr., to respondent, - - - 1007 

From Lieut. Hunnicutt to Col. Burgen, dated 5th, 1870, - 1003 

From respondent to members of congress, dated March 17, 1870, 160 

From respondent to the President, dated August 7, 1870, - - 213 
From Secretary of "War to respondent, with opinion of At. rney 

G( aeral, dated August 8, 1870, - - 214 
From W. R. Richardson, private secretary to respondent, to Josiah 

T ner, jr., - - - - 100*7 
Transcript of proceedings of superior court of Alamance ( 287, 289 
Transi ript of proceedings of superior cor-; of Caa i ill, 2 

2J :. 21S7 

Edwards, Senator — # 

Challenge to the right of, to set as a member of the court, 77 

Debate on same, ------ - - 78 

Eighth Articlk of Impeachment — 

Amendment thereto, - - - -61 

Amended answer thereto, - - - - - 100 

Debate on motion to amend, - 62 

Replication to amended answer thereto, - - - 101 
erhob "Worth — 

Debate on admission of protest of, - - - 1091 

Protest of. - - - 1103 

Habeas CoRrus — 

Affidavit of A. C. McAllister, of service of writ. - - - 1SS 
Debate on admission of proceedings before Judge Brooks, on 153, 199 

Petition of Adolphus G. Moore for writ, - - 179 

Petition of John Kerr and others for writ, ... - I71 

Petition of Josiah Turner, jr., for writ, - 205 

Petition of Peter H. Williamson for writ, - - - 174 

Proceedings before the chief justice, on - - - 171 

Proceeding before Jud^e Brooks, on - - 203 

Hearsay testimony ok outrages — 

Debate on admission of - 1256, 1281J 1593 

Hearsay testthont ok memdeus of Killx Klan — 

Debate on admission of -------- 2010 

; [otei Register — 

Debate on admission r >f entry of Kirk's and Burgen's names on 


Inaugural address of respondent — 

Debate on admission of - - - - 1105 

Jones, Senator, H. C. — 

Reasons for vote on admission of testimony filed, - - - 12% Klan — 

Debate on admission of proof of existence of ... 302 
Oath of - 1249, 1584, 2228 
Letteb of H. A. Badham AND OTHERS to respondent — 

Debate on admission of - - - - - - 1127 

Letter of respondent to Dr. Pride Jones— 

Debate on admission of 1151 

Letter from respondent to President Grant— 

Debate on admission of 163 

Motion to place Cornelius B. Edwards in contempt— 

Debate on 2t>l 

Opinions filed by Senators— 

.Senator Allen, ... . Appendix Xo. 1. 39 

" Brogden, .-....-.. 48 

" Edwards, - * - - - 108 

" Hemming, - - 2*7 I 

" Gilmer, U •* 

" Kin-, 22 P 

Lehman, 60 3 

Linney, - - - 84 ' 

Moore. - - :; I 

McClammy, - - -77 

" Norment, - 9 |> 

" Bobbin., \V. M. - 14 | 

" Warren, KM) ."> 

Order of Judgment — - - - - '1 

\ ote <>n adoption of - - - - 2560 


Debate on admission of evidence of - 1210 » 
Proceedings for Injunction i.v Superior Court of Irkdell County to 

m:\in payment of Troops — '' 

Debate on admission of proof to Bhow respondent's know'e Ig ■ of •••:!•"> 

OVERNOR Worth - - - 1108 

1. on e on of ..--. . 1091 


Debate on admission of - - - - 204i; 

[ON TO AMENDED Article Yin, ... - 1()1 

,i< ltion to Answer, 57 

Bbplt of Respondent ro bi umokb op Court op Impj ai iml • 22 



index. vn 



MENT, - - .... . 1 

Report of Committe of tiie Whole of the House on* Articles of 

Impeachment, 4 

efutation* of Col. Kirk — 
/ Debate on admission of proof of - 265, 274, 285 


Of House in regard to conducting impeachment, - - - 5 

Of House to appoint committee to take testimony, - 3 

Of House to authorize managers to employ a clerk and messenger, 5 

Of House to inform Senate of impeachment of W. W. Holden, - 2 
Of House to inform Senate that managers have been appointed to 

conduct impeachment, ........ 4 

Of Iloir-e to inform Senate that the House has adopted replica- 
tion to answer of respondent, - 5 

Of House to impeach William W. Holden, governor, ... 1 

Rules of Coit.t — 

As adopted, - 25 

As modifi Ion motion of Senator Worth, * 1847 

Superior Court of Alamance — 

Transcript of proceedings of - 2S7, 289 

Superior Court of Caswell — 

Transcript of proceedings of .... 290,292,203,2187 

Testimony — 

Albright, Jeremiah H, - 714 

Albright, William A. ........;. 

Albright, William R. ........ issi 

Allen, Abi, - - . - 2176 

Allen. Samuel -.------.. 2085 

AUred, David - - - 1238 

Alfred, John 1372 

Alston, Alinnie, ----.__... 1404 

Anthony, George, 2170 

Bagley, William H. -------- 167,169 

Iiason, John - . . . 1390 

Battle, P. - 1024 

Beverly, Haywood, - 1853 

Blair, James M. - - - - 23o 

Boone, George D. ......... 1695 

Bradshaw, William H. 1407 

Bragg, John .......... 927 

Brandon, Harry T. 740 

Erien, Hamilton, - 1471 

Bowe, William B. - 836 

Boyd, James E. 1580 

vni INDEX. 

Brown, George H. .---.... 150a 

Brown, Tilraan, - 2143 

Bulla, James R. 1812 

Caffey, Wilson S, - ... 237CL 

Carey, Wilson, 2207 

Cassey, Carter - 2205 

Chandler, William G. 2139 

Clarke, William J. 1709 

Cocke, William M. . 2*79, 284 285 

Cole, James, - - - . . . ... . . 14S9 

Collis, Stephen W. ..... 2063 

Compton, James, - - - . _ . - 2170 

Conly, John E. 2149 

Co'oley, Joseph G. -----..... 925 

Crawford, Samuel J. 579 

Cummings, David o<>72 

Curtis, Clement 1805 

Curtis, John 1^73 

Deaver, Adolphus E. ... - - - - 2113 

Denny, John - - _ - 1241 

Dickey, Zachary T. - .... 2202, 2100 

Doll, Archibald ---...... 2141 | 

Duke, John W. ----.... 1866 $ 

Edwards, Cornelius B. --..... 256, 263 \ 

Edwards, William J. .... ... 282 f* 

Euliss, Eli S. ---.-..... i9 66 \ 

Fisher, Abiel W. . 149,967,2166,2171 

Fogleman, John T. .... .... 2162 

Fonville, John R. - . ... ug4 I* 

Foster, Thos. J. .... . - 2117 

Foust, George K. ...... . 193$ •"> 

Freeman, Green, 13^7 t 

Gant, Jesse . 484, 2218, 2258 

Gappins, Julia . 1402 

Gappins, Mary 1397 1 

Garrison, Samuel 1220 I 

Gerr'nger, Alphonso 1464 

Gilliam. William - 527 

Kilmer, Senator John A. 564 ) 579 

G-leasqn, Gideon 1.. . 2212 

Gorman, John C. 918 

Graham, Senator James A. ..... 1032,2229 

Grah nat r John W. ... . 567,915 

Griffith, Jesse C. 767 ; 515 



Guy. John - - - - 1687 

Hardin, John W. - - - - 1855 

Hardin, Peter R. ... - - - 1926 

Harvey, Joseph - - 1427 

Hill, Samuel P. - - 789 

Holmes, William - 492 

Holt, Caswell - - - 1311 

Holt, Damon - - - 1381 

Holt, Henry (No. 1) - - - ... H92 

Holt, Henry (No. 2) - ... . 1496 

Holt, James B. ... ..... 1474. 

Holt, Jeremiah, - 498, 509, 526 

Holt, Joseph E - - - 1355 

Holt, Linn B. ---------- 1469 

Holt, Mary - - - 1298 

Holt, Polly .... . . 1450 

Holt, Sally - - - - - 1445, 1460 

Holt, Seymour P. - - - 1705 

Holt ,Thos. S. - 627 

Hornaday, William - - - - - 2036 

Huffines, Milton - - - - - 206f, 

Hughes, Pester - - - - - - 1247 

Hunter, Robert S. - - - 623 

Ireland, John Rich - - - - - - 2223 

Iseley, Asa .....-- 2225 

Jenkins, Aaron D. - - - 228,231,237,954,218 

Johnson, Albert - - - - - - 1759 

Johnson, Da<„ id - - 2146 

Johnson, Thos. B. ....-.-.. 284 

Jones, Yancey -- - ----871 

Kerr, David - - .... 529 

Kerr, John - - - - - - - 816 

Lankford Green - - ----- 1510 

Larking William - - 153, 161, 198,205, 208, 210 

Long, Jacob A. - - ... 2227 

Long. John W. - - - 1992 

Long, William - .... . 1345 

Mc Adams, Joseph - - 1500 

McAdams, William - - - - 1703 

McAllistfcr, Alexander C. - - 583, 992, 996, 1033, 2259 

McLean, Thomas G. - - - - 230 

McVey, William - - - - - - - 1519 

iane, Joseph, ..-....-. 2075 

Peter Mebane, - - - - - - - - - 1441 



Mitchell, Wesley 
Moore, Chesley 
Moore, Empson 
Moore, James G. 
Moore, John A. 
Morrow, Anderson 
Morrow, Lucinda 
Murdoch, William M. 
Murphy, John S. 
Murray, Albert 
Murray, Andrew - 
Murray, Green 
Murray, Jacob 
.Murray Lucien II. 
Murray, William J. 
Heathery, John B. 
Newlin, Jonal 1 an 
Outlaw, Eli 
Overman, John 
Patterson, George 
Patterson, .lames A. J. 
Patton, William 
Phillips, Jemima 
Puryear, Matilda 
Ramsey, Theodore X. 
Ray, Henry M. 
Iiiiigstaff, James C. 
Etippey, Leonard - 
Rogers, George S. 
Rollins, Pinckney 
Jtec.'es, Isaac E. 
Rutjes, Adoljih J. 
Scott, J as. S. 
Shatterly, John 
Shoffner, Andrew, 
Simpson, William F. 
Skeenes, John 

■ us, William II. 
Stout, William J. 
Strowd, Ned 
Terr il. Rob rt 
Thompson, Richard 
. I-, Joim W. - 
Trollinger, Alfred 






Turner. Jr., Josiah - - - - - 892 

Waite, George -------- . 7;j:> 

Ward, William J. ... - . 1875 

White, Alfred ------ - 1487 

White, Samuel - ------- 519 

White, Simon - 1482 

White, Stephen A. - - ' - - 1781 

Whitesell, Daniel - - - - 1555 

Whitesell, Jacob ----- . 1541 

Whitsett, Austin ..-.---. 734, 2197 

Wilkins, William - 2219 

"Wilkinson, John C. ........ 1479 

, Williamson, Geo. - ..... §79 

Worth, Daniel .------ -568 

Worth, Donaldson - - - 1205, 1220 

Yancey, Albert ('<. ... - - - 851 

Young, Creed F. - - - - - - 1025 

Younger, Jefferson - - ' - 1567 

Zachary, Jonathan 1215 

Treatment of Prisoners — 

Debate on admission of proof in reference to knowledge of respon- 
dent of ... ... 979 

Debate on admission of newspapar articles as proof in reference to 

knowledge of respondent of ------ - 1007 

Debate on admission of declarations of respondent in reference to 1733 
Vote ox Articles of Impeachment — 

Article I, - 2539 

"II, - - 2541 

" III, ... . . 2542 

" IV, - - - - 2544 

"V, - 2548 

"VI, 2552 

" VII, - 2554 

" VIII, - 2.V-7 

Vote oh Adoption of ordee of judgment, - - - 2560 
.[;• therhood — 
• Kuklux Klan) 

No. 1. Opinion of Senators, - 1, 108 

No. 2. Pro' in Habeas Corpus cas ■ - 18, 38 

No. 3 Constitution and By-laws, IT. L. A. - 1. 10 

Final Proceedings oe the House - - - - 2563